Mariam Sargsyan_Letter of Motivation

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The Perils of Being a National Minority:

Human Rights and Chakhalyan v. Georgia

Report on Human Rights Violations in the Republic of GeorgiaPrepared for Yerkir Europe by Dr Fernand de Varennes

22 May 2012

Union Yerkir - Europe

www.yerkir.eu [email protected]


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The Perils of Being a National Minority: Human Rights and Chakhalyan v. Georgia by Dr Fernand de Varennes, 22 May 2012

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TABLE OF CONTENT

1. Introduction2. Georgia and the Caucasus3. Minorities in Georgia: The Religious and Linguistic Contexts4. 2008: Georgias Annus Horribilis and its Victims4.1 How not to Address Tensions in Georgia4.2 Questions Surrounding the Accusations against the Chakhalyans4.3 Human Rights and Justice Denied: The Trials and Tribulations of Vahagn, Ruben and

Armen Chakhalyan4.3.1 Denial of the right to examine witnesses4.3.2 Denial of the right an accused to defend himself4.3.3 The right to interpretation when one does not understand the language of

proceedings4.3.4 Right to a legal counsel chosen by the accused

5. International Responsesand Unease

6. Human Rights and a Fair Trial: An Appeal to the European Court of Human Rights


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1. Introduction

Georgia, a Western ally in the volatile Caucasus region, is far from an ideal democracy in a numberof respects. It is one of the few countries in Europe which has in effect a state religion and givesunheard of rights, privileges and even a role to play in state institutions to the leaders and followers

of the national faith. Basic political liberties, even the freedom to organise political parties, areseverely limited in Georgia, and political parties that are too regional are simply banned.1

Most surprising for a member-state of the Council of Europe, the activities of minorities can be alsoseverely controlled, and such objectionable conduct as holding a demonstration or meeting

officials from the Council of Europe can lead to serious trouble with state authorities. 2 Evenmembers of the media and photographers in 2011 faced the wrath of the state apparatus andcriminal chargeseven extremely serious accusations of espionagefor the apparently threateningactivity of taking photos of demonstrations and sending them overseas.3

This report attempts to humanise what is occurring in Georgia by focussing on how individuals

have seen their lives and that of their families literally destroyed for something as innocuous asclaiming the recognition and protection of the human rights of the Armenian minority in thatcountry.

It is the story of the Chakhalyan family and in particular of Vahagn Chakhalyan, as well as that ofthe events which led to the imprisonment of some of them, to beatings and brutal treatment in

1 See in general the concerns expressed by outside observers in International Crisis Group, Georgia: Sliding towardsAuthoritarianism?, Europe Report N189, 19 December 2007.2 Just a few weeks after meeting members of the Council of Europes Advisory Committee of Experts on theimplementation of the Framework Convention for the Protection of National Minorities, the director of an Armenian

youth centre, Grigory Minasyan, and Sarkis Akopjanyan, president of a minority Armenian charitable NGO, were botharrested on 22 January 2009 and charged with separatist activities and espionage, the latter accusation connected tocompleting a questionnaire and receiving money from a a Belarus-based organisation allegedly set up by RussiasFederal Security Service called the Association for Legal Assistance to the Population. A representative of thisAssociation gave out questionnaires in 2008 to representatives of NGOs in the region for which they received between300 and 800 dollars if they filled them in. Not long after this in 2010, S.M. Barbakadse, the chairman of an organisationrepresenting this time the Meskheti minority, was arrested and put to prison on what has been described as a trumped-up fraud charge: he was sentenced in January 2011 to 11 years of imprisonment.3 Journalists and reporters are now actively targeted and even arrested by the Government of Georgia. At 3 in themorning on 7 July 2011, police officers in civilian clothes arrested 5 photo-reporters at their homes, including ShahAivazov, an Associated Press photographer, Zurab Kurtsikidze, photographer for the European Pressphoto Agency, andeven Irakli Gedenidze, the personal photographer of the President of Georgia. The latter two had taken photos ofprotests in Tbilisi on 21 May 2011 and dispersal of another rally a few days later in Tbilisi on 26 May, 2011, photos

which were subsequently disseminated by the European Pressphoto Agency. In an official statement, they were accusedof supplying the organization, operating under the cover of a foreign countrys special service, with variousinformation, against the interests of Georgia. More than a dozen journalists were targeted and injured or arrested by

police and security personnel following peaceful demonstrations in May 2011. In 2010, a well-known investigativejournalist, Vakhtang Komakhidze apparently received death threats after working on issues of corruption and disregardof human rights by state authorities, leading him to leave Georgia and apply for refugee status in Switzerland. On thecurrent repressive atmosphere in Georgia generally towards journalists and human rights defenders, see theMay 2011Reportof the Fdration Internationale des Ligues des Droits de lHomme at http://www.fidh.org/GEORGIA-2010-2011 which concluded:

2010 and the beginning of 2011 saw no improvement in the situation of human rights defenders in Georgia.NGOs continued to faces growing hindrances to their activities [from state authorities]. Threats, attacks anddefamation campaigns targeted human rights defenders working on issues related to the consequences of theAugust 2008 war with the Russian Federation, who exposed corruption or who defended minorities rights. In

addition, obstacles to freedom of peaceful assembly through arrests, detentions and sentencing remainedcommonplace.


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prison, and to their case being heard in 2012 by the European Court of Human Rights in the hopethat their rights will somehow be finally recognisedand some degree of justice prevail.4 It is alsounfortunately the story of a country becoming increasingly repressive despite high hopes it wouldplay a leading role in the Caucasus region, and drifting more and more towards violence and denialof the most basic of human rights and freedoms. For the first time an international judicial body is

being asked to pass an impartial, objective judgment on how Georgia treats those who dare questionthat countrys denial of basic rights of many citizens and minorities.

2. Georgia and the Caucasus

The Caucasus is of significant importance strategically, economically and politically for majorpowers such as Iran, Turkey, Russia, Europe and the United States, including in the case of Georgiaas a primary conduit for Caspian Sea region oil and natural gas exports to the West.5

Georgias location in the centre of the Caucasus region, a historical crossroad for Europe and Asia,has also meant that it shares not only the regions mountainous beauty and startling ethnic and

linguistic diversity, but also some of its tragedies, struggles and challenges. All of the neighbouringstatesRussia, Georgia, Azerbaijan and Armenia have been affected since the end of the SovietUnion in 1991 by various territorial and secessionist disputes, including those in Nagorno-Karabakh, the Ossetian-Ingush conflict Abkhazia, Dagestan, Chechnya and most recently SouthOssetia.

The recent history of Georgia has not been a very happy one, and events in the last two decadesreads like an unfortunate tale of missteps, mistakes and miscalculations. Understanding these mayhelp to see why there has been in the last two decades an almost inexorable slide towards everincreasing repression and denial of human rightsdespite the best efforts of Europe and the UnitedStates.6

4 Beatings of prisoners, especially those trying to capture the attention of the international community, is unfortunatelynot uncommon in Georgia, as in the recently reported cases in the US 2010 State Department report on Georgia, whichgives among others the example of Archil Sakhvadze, who on August 19 was singled out by prison guards, beaten andtold to withdraw the application he had filed with the European Court of Human Rights. United States Department ofState, 2010 Country Reports on Human Rights Practices - Georgia, 8 April 2011, available atwww.state.gov/j/drl/rls/hrrpt/2010/eur/154425.htm .5 See IEA Directorate of Global Energy Dialogue, Perspectives on Caspian Oil and Gas Development, InternationalEnergy Agency Working Paper Series, December 2008.6 See, amongst others, the Statement by the United Nations Special Rapporteur on the rights to freedom of peacefulassembly and of association at the conclusion of his visit to the Republic of Georgia, Tbilisi, 13 February 2012, at

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=11816&LangID=E,and the disturbingconclusions of theHuman Rights Violations in Georgia Alternative Report to the UN Human Rights Committee,Geneva Tbilisi 24 April 2006, at page 6:

Unfortunately, the proliferation of anti-democratic tendencies has not come to an end in 2005 and significantsetbacks have been observed in several fields. Step by step, Georgia is acquiring all the signs of a police State.The right to freedom of expression has clearly received the most serious setback. Arbitrary detentions,beatings, grenade attacks, defamation and pressure against journalists have almost become daily business.Dozens of journalists fell victim to pressure, violence, and arbitrary detention in 2005. Several media holdingshave been closed down. According to Reporters Without Borders, the media freedom index of Georgiacontinues to drop catastrophically and has moved back 26 steps compared to the last few years. The centralgovernment not only proves to be unable to secure the rights of journalists, but sometimes even acts as theinitiator of pressure and harassment. Other areas also show problematic signs. The judiciary has finally

become simply the governments appendix. Pressure against independent minded judges is mounting, with

few judges daring to speak out openly, as those who do are often punished. Impunity among law enforcementofficials is widespread and no serious action has been taken to reverse this trend. Torture and ill-treatment ofdetainees remains an unresolved problem. The right to assembly and manifestation, guaranteed by the
http://www.state.gov/j/drl/rls/hrrpt/2010/eur/154425.htmhttp://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=11816&LangID=Ehttp://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=11816&LangID=Ehttp://www.state.gov/j/drl/rls/hrrpt/2010/eur/154425.htm


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Independence for Georgia since 9 April 1991 has been an almost continuous series of setbacks:from the first president Zviad Gamsakhurdias ill-considered nationalism against minority claims inAbkhazia and South Ossetia creating a poisoned environment which exploded into violence and

population movements from 1992, a coup dtat that deposed the first president in 1991, the arrivalof the countrys second president, Eduard Shevardnadze, the eruption in 1995 of violence and wars

in Abkhazia and South Ossetia, with assistance from Russia. In 2003, President Shevardnadze wasdeposed by the Rose Revolution, after parliamentary elections marred by fraud. MikheilSaakashvili was subsequently elected as President of Georgia in 2004, and quickly asserted hisauthority in the south-western autonomous republic of Ajaria. There was initial successes also in inMay 2005 when Georgia and Russia reached a bilateral agreement for the withdrawal of Russianmilitary bases in Batumi and Akhalkalaki by December 2007.

Matters turned much worse on the night of 7 August 2008 when Georgian troops launched a night-time artillery attack on Tskhinvali, the capital of South Ossetia, where some Russian soldiers havebeen stationed as peacekeepers under the terms of a 1992 agreement after the 19911992 SouthOssetia War. Despite contradictory media reports and claims by the Government of Georgia that it

was responding to persistent harassment for months from the South Ossetian side, the EuropeanUnions independent report concluded that the massive armed attack from the Georgian side against

a civilian target was unwarranted in international law.7

Source: http://newsimg.bbc.co.uk/media/images/44914000/gif/_44914403_georgia_320.gif

After fierce fighting, Georgian forces initially made territorial gains throughout South Ossetia andhad captured almost all of Tskhinvali. Eventually, units of the Russian army and irregular forcesbeat them back; in addition, the separatist Republic of Abkhazia launched an offensive againstGeorgian troops with the support of Russian troops, with Russian forces finally crossing intoGeorgia proper, occupying cities such as Gori, and Poti and almost reaching the outskirts of Tbilisibefore Russian President Medvedev announced a halt to military operations on 12 August 2008.

The shock and embarrassment to the turn of events in 2008 have, perhaps not coincidentally, beenfollowed by a worsening of the plight of journalists, human rights defenders and minorities within

Constitution, has frequently been violated. Peaceful protests and demonstrations have been forcefully

dispersed and demonstrators detained.7 Independent International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG),Report Volume 1, Council ofthe European Union, September 2009.


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Georgia itself, though the treatment of minorities before 2008 had already been suffering as aresponse to the loss of some of the countrys territory to secessionists movements. These events is away help explain why it appears increasingly that criticisms from any Georgian who may haveconnections with outside countries including the Fifth Estate and the loyalty of the countrysremaining minorities outside of Abkhazia and South Ossetia, are deemed to be suspect and

threatening by state authorities. The fears and insecurities associated with the turmoils of the lastyears largely define the prevailing attitudes and actions of state authorities towards minorities, andgradually those whose criticisms are less and less tolerated by those in power, including journalistsand even human rights defenders.

3. Minorities in Georgia: The Religious and Linguistic Contexts

Source: http://upload.wikimedia.org/wikipedia/commons/6/62/Ethnic_Groups_In_Caucasus_Region_2009.jpg

In addition to the above external geopolitical factors, certain the religious and linguistic situation in

Georgia itself has contributed in the last 10-15 years to an increasing erosion of human rights, inparticular those of minorities. As a result, it seems that individuals who are perceived as leaders or


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troublemakers amongst minorities tend to be specifically targeted and taken care of by stateauthorities, at times even with the adoption of legislation specifically to deal with their situation, asin the case of Vahagn Chakhalyan.

Religion and language affiliation are usually closely connected in Georgia, though of course notalways identical. Based primarily on approximate figures from the 2002 national census, the largest

minority groups in the country are Azeris with 285,000, Armenians with 249,000, Ossetians withperhaps 160,000, the Abkhaz perhaps 90,000, and Russians 68,000.8 Ethnic Georgians representmore than 80 percent of the population, speak the Georgian language and at least nominallyassociate themselves with the Apostle Autocephalous Orthodox Church of Georgia (GeorgianOrthodox Church, GOC). Most Azeris tend to speak the Azeri language and are mainly Shia,Ossetians tend to be Orthodox or Sunni Muslims in addition to identifying with their own language,Ossetic, while members of the Armenian-speaking minority are usually also followers of theArmenian Apostolic Church (AAC). There are also a number of Protestant and other non-traditionaldenominations, including the Jehovahs Witnesses which are in particular often prevented from

practising their beliefs.

Gradually, Georgian nationalism since 1991 in both matters of religion and language has weakenedthe secular and ethnically inclusive nature of the state to one where today the country belongs to,and the institutions of the state identify with, the religious and linguistic traits of the dominantethnic Georgians.

On the religious front, Georgia has moved from a secular country with separation of church andstate recognised in its Constitution in 1991, to one where this has been watered down following theconclusion ten years later in 2001 of a Constitutional Agreement, 9 also known as the Concordat,whereby the Georgian Orthodox Church becomes in effect the state religion with a number ofprivileges, benefits and role in state affairs enjoyed by no other religious denomination. Thischange of the Constitution of Georgia means that the Concordat, and the ensuing privileges and role

of the Georgian Orthodox Church in the affairs of state, achieves higher legal status and protectionin the countrys legal system than ordinary Georgian legislation and international treaties.10 In2009, the government of President Saakashvili tripled its annual financial support to the GeorgianOrthodox Church from the national budget to 25 million lari, or roughly $US13 million in additionto a gift of ten: luxury sports utility vehicles for each of the Orthodox Churchs 10 archbishops.11

8 There are no reliable population figures for Ossetians and Abkhazians since 1989 since South Ossetia and Abkhaziahave broken away from the control of the central Georgian government.9Constitution of Georgia, Article 9:

1. The state shall declare complete freedom of belief and religion, as well as shall recognise the special role ofthe Apostle Autocephalous Orthodox Church of Georgia in the history of Georgia and its independence fromthe state.

2. The relations between the state of Georgia and the Apostle Autocephalous Orthodox Church of Georgiashall be determined by the Constitutional Agreement. The Constitutional Agreement shall correspondcompletely to universally recognised principles and norms of international law, in particular, in the field ofhuman rights and fundamental freedoms.

Unfortunately, despite the wording of paragraph 2 above, if there were to be a contradiction between the ConstitutionalAgreement and a human rights treaty, it would seem that the Concordatwould prevail over human rights since Article6(2) of the Constitution also indicates that the Constitutionand as a result the Constitutional Agreementprevailsover international treaties:2. The legislation of Georgia shall correspond to universally recognised principles and rules of international law. Aninternational treaty or agreement of Georgia unless it contradicts the Constitution of Georgia, the ConstitutionalAgreement, shall take precedence over domestic normative acts.10State of freedom of religion in Georgia since the adoption of Constitutional Agreement between Government and theOrthodox Church of Georgia, Religious freedom report 2008, Human Rights Centre of Georgia (HRIDC), 25 April

2008, Tbilisi, Georgia. Available at http://www.humanrights.ge/admin/editor/uploads/pdf/ReligionReport.pdf11 In comparison, the 2009 government budget for the countrys national Legal Aid Service was only a fraction of thisamount: 2.9 million lari or about $1.71 million.
http://www.humanrights.ge/admin/editor/uploads/pdf/ReligionReport.pdfhttp://www.humanrights.ge/admin/editor/uploads/pdf/ReligionReport.pdf


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This financial help was increased to 25.3 million lari in 2010. No other religious group in Georgiareceives state funding or similar government gifts, raising the likelihood that this close relationshipand financial support constitutes discrimination on the ground of religion, in addition to beinginconsistent with the separation between church and state.

The Georgian Orthodox Church has also been handed ownership or control of most church

properties which had been seized by Soviet authorities including churches which belonged toother religious groups such as Catholic Church and the Armenian Apostolic Church. Control overthis property has become a very contentious issue, with most religious minorities not being able towrest control of most of their church buildings from the Georgian Orthodox Church.12

Though the government just recently in 2011 adopted legislation, after extensive internationalpressure, allowing for the first time religious groups other than the Georgian Orthodox Church to beregistered as public organisations,13 it has not adopted legislation to facilitate their ownership ofproperty such as church buildings, nor granted to other religious groups any of the unique privilegesand role in state affairs awarded to the Georgian Orthodox Church under the Constitutional

Agreement, including:

Legal immunity from prosecution for the Patriarch of the Georgian Orthodox Church(Article 1.5) Only the Georgian Orthodox Church pays no tax on either salaries or property or the sale of

religious paraphernalia (Article 6.5) Only Georgian Orthodox religious marriages are automatically recognized under Article 3

of the Concordat Only members of the clergy of the Orthodox Church are automatically free from military

conscription; personnel of other denominations can only request postponement of themilitary service or claim and justify exemptions on conscientious grounds (Article 4)

Church property has been returned to the Georgian Orthodox Church since Georgiasindependence: very few properties has been returned to the other religious groups

All major Orthodox holy days are state holidays according to Article 1.6, whereas those ofother religions are not

Article 4.2 recognises for the Georgian Orthodox Church an official role and only for theOrthodox Churchin terms of spiritual guidance and counselling to military staff and thoseheld in state detention facilities, to be defined in legislation

The Georgian Orthodox Church also is given a consultative role under Article 5 of theConstitutional Agreement in joint educational programmes with state institutions, and isentitled to state support for its educational institutions. Moreover, the State agrees toofficially recognize the educational certificates issued by the educational institutions of theOrthodox. No other religious group is given a similar role to play with or support from stateauthorities.14

12 Out of the 29 Armenian churches in Tbilisi at the beginning of the 20th century, only remain today under the controlof the Armenian Apostolic Church. The ownership of the Armenian church of Norashen is particular has attractedinternational attention after the removal of Armenian tombstones, the mysterious apparition of Georgian tombstonesfrom other locations, and the gradual removal of any visible inscription in the Armenian language by workmenemployed by the Georgian Orthodox Church.13 On 5 July 2011 the Georgian Parliament amended the Civil Code to allow religious organisations in Georgia to beregistered as legal entities of public law. Previous to this amendment, religious groups other than the GeorgianOrthodox Church could only register as non-commercial legal entities of private law, a status similar to that of anNGO or foundation. It is too early to determine what benefits or rights will be associated to this new status, if any, inthe absence of further legislation.14 The elective course in Georgian state schools on religion in society essentially deals only with the theology ofOrthodox Christianity, and the main textbook used in this courses focuses on Orthodox Christianity to the exclusion ofother religions.


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Contrary to the statements of some government official that the results of the Concordat areessentially symbolic, the above examples show quite the opposite: the Georgian Orthodox Churchis guaranteed through the Constitutional Agreementconcrete benefits, privileges and rights whichare denied to all other religious organisations. More worrisome in terms of the division betweenchurch and state, it has also been given a constitutionally protected right to be directly involved in

areas of education and the operations of some state institutions (the military and detentionfacilities).

As for the linguistic preferences of state authorities, there has been a similar gradually exclusionaryand nationalistic evolution, though initially soon after independence there was an increase in therights of minorities in general and at least the Armenian minoritys right to use its language withinadministrative and other public bodies in the period 1991-1995. From 1995 however, Georgia hasbeen heading towards an ever increasing drive to make Georgian the only language of education,employment and of communicationthus excluding many citizens from an active role in the social,

political and economic spheres of the country and making it increasingly illegal to use minority

languagesexcept for Abkhaz.15 The following shows for example how since 1995 there has beena legislative creeping effect which has led to an increasingly marginalisation of the use of thecountrys main minority languages:

1995 Constitution names Georgian state language 1998Law on Public Servicestipulates public service in Georgia is exercised using the

Georgian language, and that lack of knowledge is a ground of dismissal 1999Administrative Code, Georgian to be used in all administrative proceedings 2003 Unified Election Code of Georgia requires knowledge of Georgian for

parliamentarians 2005 Self-governance Law, all governmental sessions must be in Georgian 2006 amendments to 1997Law on Public Service mandating exclusive use of Georgian

This has led to the perception that the Government of Georgias policies and practices areincreasingly disadvantaging and even excluding minorities such as the Armenians, the Azeris andOssetians:

In 2005 and 2006 mass demonstrations and political meetings were organised by Samtskhe-Javakheti activists, whose demands included autonomy within Georgia for Samtskhe-Javakhetiand Tsalka Armenians, use of Armenian in public administration in Armenian-populatedmunicipalities, an end to settlement of ethnic Georgians from other parts of the country inSamtskhe-Javakheti and improved Armenian representation in state institutions. Crisis Groupobserved a conference on 1 July 2006 in Akhalkalaki where more than 100 participants unitedin protest against Georgianisation policies and a call for autonomy.

Armenians strongest grievance is the inability to use their language in public life. Thegovernments new language policies are a source of strong resentment. Tbilisi is accused of

abolishing minorities former rights to use Armenian or Russian and thus limiting access to

jobs and education.16

15 Though a number of state schools in areas where minorities are concentrated may still teach in languages such asArmenian or Azeri, Georgian government officials have since 2005 gradually chipped away at the number of coursestaught in minority languages, and reduced the number of hours where minority languages are even taught, such as in2010 in so-called Armenian schools: Before, Armenian language classes at the elementary school were 8 hours aweek with 3 hours being allotted for the Georgian language. Now however, the classes are [half and half] See

Georgia Limiting Teaching of Armenian in Javakhks Schools, 17 September 2010, Asbarez Post, at

http://asbarez.com/85455/georgia-limiting-teaching-of-armenian-in-javakhk%E2%80%99s-schools/16Georgias Armenian and Azerbaijani Minorities, International Crisis Group, Europe Report No. 178, 22 November2006, p. 3.
http://asbarez.com/85455/georgia-limiting-teaching-of-armenian-in-javakhk%E2%80%99s-schools/http://asbarez.com/85455/georgia-limiting-teaching-of-armenian-in-javakhk%E2%80%99s-schools/


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All police officers, lawyers, judges, medical doctors and other public servants must all eventuallypass a Georgian language exam in order to keep their position, regardless of how long they haveoccupied or post or even whether they need to use Georgian in their daily work. Whereas stateauthorities appeared to be more flexible in their testing in 2006 with, for example, Armeniandoctors being provided with translators, there was in 2007 a hardening of Georgian policy in 2007

when all school directors had to pass a similar language test: but this time with no translationassistance as had been permitted for public doctors, with the result that not a single director of the150 or so Armenian schools passed. All of them were officially suspended, though remaining intheir positions until the government replaces them. When the Government of Georgia attempted toreplace one Armenian school director in Akhalkalaki with an ethnic Georgian director theappointment was rejected by the local school board and large scale expressions of discontent amongthe Armenian community. Perhaps not wanting to risk fanning the flames of discontent in theregion, state authorities appear to have backed down temporarily, and not apply the law whichwould seem to require that all Armenian school directors be dismissed and replaced.

There is finally a human dimension to the policies of the Georgian government. Contrary to the

suggestions by some that the current policies and legislation are not being implemented, andtherefore are victimless since in reality the government is being pragmatic in not complying withits own laws, this is not accurate. Individuals who are members of minorities are being fired,disadvantaged or excluded through the at times arbitrary or targeted implementation of the existinglaws and policies. While the government is still at times not implementing every aspect of its lawson the requirement of fluency in Georgian for government positions, including elected officials,doctors, police officers, etc., neither is it true that it is not occurring:

3 Armenian lawyers in Samtskhe-Javakheti could not pass exam in Georgian in June 2006 andlost their licences

The Director of the Education Ministrys municipality resource centre in Ninotsminda alsocould not pass exam in Georgian in June 2006 and was replaced

Also in Ninotsminda, an officer of the court, the head of the statistics department, and the headof the civil register service, and 6 Armenian staff at the Support Centre for Socially VulnerableFamilies (Ministry of Labour, Health and Social Affairs), have all been replaced, mainly byethnic Georgians, for failing the exam in Georgian

Following a television interview on 18 February 2007 where he opined that Armenians werevictims of violations of their rights, the Deputy Director of the Tbilisi State Armenian Theatrewas forced to submit his resignation.

In some areas, the extent of the exclusion and discriminatory impact of the current denial of theprotection of national minoritiesin particular with legislation making Georgian the necessary andexclusive language of employment is dramatic. Especially in regions where Armenians andAzeris are not a majority, they are excluded out of all proportions from state institutions to the pointof being almost invisible.17

Contrary to what is often claimed as a reason why all citizens must be fluent in the Georgianlanguage, Georgian is not the countrys only state language. Article 8 of the Constitution makes

17 For example, while Armenians constitute more than a third of the population the district of Akhaltsikhe according tothe 2002 census (36.59%), they are virtually excluded from most categories of public employment such as the policeforce (three Armenians only among about 190 police officers); or the tax department (none out of about 48). While

formerly there was a branch of Tbilisi State University in the town of Akhaltsikhe, which had an Armenian sectionteaching the Armenian language and culture, this no longer exist, and the new public university replacing the formerTbilisi-operated institution (the Independent Institute of Akhaltsikhe) now only teaches in Georgian.


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clear that the country has in fact two official languages: The state language of Georgia shall beGeorgian, and in Abkhazia - also Abkhazian.

The status of a state language is significant, since it implies with it its use by governmentauthorities and employment purposes in the civil service a status denied to other minorities with

the result that communities such as the Azeris and Armenians tend to be almost completelyexcluded from many categories of jobs and find themselves socially excluded by their owngovernments restrictive and discriminatorylanguage preferences.18

The point is significant because on the one hand it would allow two groups of citizens in Georgia touse their language in contacts with state authorities as well as a language of employment andeducation generally but no other languages even if used by hundreds of thousands of speakers.Much larger minorities on the other hand thus find their language almost completely excluded fromany use by state authorities outside of public education, and corresponding employment andeducational opportunities. Ironically, there is a third language, English,19 which is increasingly usedby state authorities for official purposes and can be seen on highway signs, while hundreds of

thousands of citizens who are fluent in Armenian, Russian or Azeri and have little or noknowledge of English, Abkhaz or Georgian are treated like second-class citizens by their owngovernment and their languages virtually and increasingly prohibited in the public sphere foralmost all intents and purposes.

This anomalous state of affairswhere a government refuses to communicate with large segmentsof its own population in a language they understand unfortunately seems to define Georgiascurrent policy on integration of minorities: for all the talk of the need to be inclusive, 20 the currentgovernment policies in matters of religion and language have quite the opposite effect, sinceintegration seems to be understood in the sense of only recognising one language and one religion,and not trying to effectively reach out to minorities and have them successfully participate in

national society. The dramatic and increasing absence of minorities since 1991 from most political,employment and educational fields is clearly connected to the exclusionary imposition of a singlelanguageGeorgianinstead of a reasonable and proportional use of languages such as Armenian,Azeri or Ossetian (the Abkhaz language in theory being able to be used in conjunction withGeorgian in these areas in Abkhazia) where they are concentrated in substantial numbers.Ironically, the main obstacle facing minorities in the field of educationas well as employment inthe civil service and other branches of governmentis not lack of knowledge of the state languagesof Georgian or Abkhaz, it is the refusal of public authorities to allow the use of the larger minoritylanguages in the field of higher education (including admission to university) and in stateinstitutions.

18 The exclusion of minorities has increased in every area of public life despite an official government policy ofintegration, according to recent Minority Rights Group information on Georgia, available at

http://www.minorityrights.org/?lid=1909 :In central institutions, levels of minority political representation remain extremely low. In the 235-seatparliament that sat until 2008, the only minorities were five Armenians and three Azeris. After elections forthe new 150-seat parliament in May 2008, only six minorities remained (three Armenians and three Azeris).This means that for a country whose population is roughly 16 per cent minority, only four per cent of itsparliamentarians are from minority groups.

19 Meskhetian Turks applying under Georgias lawOn Repatriation of Persons Forcefully Sent into Exile fromGeorgian SSR by the Former USSR in the 40s of the 20th Century had to submit all documents in Georgian or English.

This created a barrier the majority of applicants were unable to cope with.20National Concept for Tolerance and Civic Integration, Civic Integration and Tolerance Council, Administration ofthe President of Georgia, 1 November 2008.
http://www.minorityrights.org/?lid=1909http://www.minorityrights.org/?lid=1909


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Finally, to make matters even worse, the political rights of minorities have been severely curtailedbecause of legislation which bans the formation of political parties with regional or territorialtraits, effectively preventing the formation of any political party which would aim to defend and

promote the rights of most minorities21; the government of Georgia has also to a large degreechosen to ignore many of the provisions of international treaties such as the Framework Convention

for the Protection of National Minorities and the European Charter for Regional or MinorityLanguages where these contradict too directly the religious and linguistic preferences of the ethnicmajority in the country,22 in what has been called by some Orthodox GeorgianNationalism.

The environment has, for the most part for most minorities, been one of societal and governmentalintolerance despite talk of multiculturalism and integration through policies and practices thatare only willing to concede public space to the Georgian Orthodox Church and the Georgianlanguage (and only theoretically to the Abkhaz language): non-traditional religious minorities suchas Jehovahs Witnesses, Baptists and Pentecostalists in particular have for a number of years

suffered more from violent attacks by right-wing Orthodox groups, with the covert support of thelocal authorities and the police who often appeared unable or unwilling to prevent these attacks,23

and jingoistic descriptions of other minorities such as Azeris and Armenians as not realGeorgians or potentially a Fifth Column supportive of Russian goals in the region.24

Continuing fears for the unity of the country, perceived threats from a neighbouring power, anincreasingly nationalistic streak in the countrys politics and resulting exclusion of minorities

whose loyalty is often put into question25: it is in this context that one needs to understand thebehaviour of state authorities when facing the demands of minorities for respect of their humanrightsand what it has meant for individuals such as Vahagn Chakhalyan.

21 See Article 6 of theElections Actadopted 31 October 1997, available online athttp://www.parliament.ge/index.php?lang_id=GEO&sec_id=69&kan_det=det&kan_id=119>22 Georgia did ratify the Framework Convention for the Protection of National Minorities in 2005, with politicalstatements seeming to reject some of the treatys most important provisions dealing with linguistic use by stateauthorities, and still refuses to ratify theEuropean Charter for Regional or Minority Languages. See on this point the

Alternative NGO Report on Georgias implementation of the Framework Convention for the Protection of National

Minorities in SamtskheJavakheti, Yerkir, Tbilisi/Geneva, January 2009. Available athttp://www.cilevics.eu/minelres/reports/georgia/ShadowReport_YERKIR_Georgia.pdf23 On how government officials often have seemed to be unwilling to act against Orthodox attacks on minorities, see

the relatively recent judgment of the European Court of Human Rights in Case of 97 Members of the GldaniCongregation of Jehovahs Witnesses and 4 Others v. Georgia , Application no. 71156/01, Strasbourg, 3 May 2007.24 According to the European Commission against Racism and Intolerance:

Recent reports continue to mention the existence of stereotypes, prejudice and misconceptions towards ethnicand religious minorities being expressed in Georgia, in particular by politicians, in the media and in school

books There are reports according to which the situation concerning racism in public discourse hasdeteriorated in some aspects due to the August 2008 armed conflict in Georgia The climate of opinion

towards members of religious minorities and in particular non-traditional minorities seemed to haveworsened in recent times and this is said to lead to cases of manifestations of religious intolerance againstthese groups.

ECRI Report on Georgia (fourth monitoring cycle), CRI(2010)17, Council of Europe, Strasbourg, 28 April 2010.25Azeris and Armenians are underrepresented in all spheres of public life, especially government. The problem isespecially acute for the Azeris in Kvemo-Kartli, where Georgians hold all important positions. Ethnic minorities

political participation and representationa key to more effective integrationis disturbingly low. Lack of dialoguebetween Tbilisi and minorities adds to perceptions of discrimination and alienation. International Crisis Group,

Georgias Armenian and Azeri Minorities, Europe Report N178, 22 November 2006.
http://www.parliament.ge/index.php?lang_id=GEO&sec_id=69&kan_det=det&kan_id=119http://www.cilevics.eu/minelres/reports/georgia/ShadowReport_YERKIR_Georgia.pdfhttp://www.cilevics.eu/minelres/reports/georgia/ShadowReport_YERKIR_Georgia.pdfhttp://www.parliament.ge/index.php?lang_id=GEO&sec_id=69&kan_det=det&kan_id=119


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4. 2008: Georgias Annus Horribilis and its Victims

4.1 How not to Address Tensions in Georgia

Fears and insecurities may explain, though not excuse, violations of basic human rights and

freedoms. Feeling betrayed by the Ossetians and the Abkhaz minorities for seceding, many ethnicGeorgians and as a consequence Georgian authorities appear to have a deeply rooted andunfounded fear that other minorities may do the same, and that any minority activism is a prelude tomore serious challenges to the territorial integrity of the state.

Unfortunately for minorities, journalists, human rights defenders and Vahagn, Ruben and ArmenChakhalyan, this context and the timing of the events of August 2008 would bring about ahardening of the behaviour of state authorities and in some cases flagrant and even brutalviolations of fundamental rights.

Mounting tensions due to the virtual exclusion of minorities in the field of university education,

state employment, and political representation, as well at the leadership of President Saakashvili,led to a number of demonstrations from 2005 which have on occasion turned violent. Instead ofencouraging minorities to address these problems through state structures which largely do notexist since there is no law to protect the rights of minorities rather than in the street, stateauthorities appear for a period to have chosen repression and persecution of the more visibleactivists. Events took a particularly dramatic turn to the worst a few weeks before the attack onTskhinvali and the Russian riposte into Georgia, as the following chronology shows:

Early 2005, Vahagn Chakhalyan, who is then a local youth leader, brings young activiststogether around United Javakhk by protesting the withdrawal of a local Russian, followedby mass demonstrations in Samtskhe-Javakheti for autonomy within Georgia, use of

Armenian in public administration in Armenian populated municipalities, an end tosettlement of ethnic Georgians from other parts of the country and improved Armenianrepresentation in state institutions 26

9 March 2006, death of young Armenian after fight with Georgian youths 11 March 2006, rally following Armenian death becomes violent, with local state

university, Orthodox church, and government buildings targeted 5 October 2006, the United Javakhk Democratic Alliance runs candidates as part of an

existing national political party (as regional parties are banned under Georgian electorallegislation) in local elections and wins 30% of votes in the Akhalkalaki district. Itdenounces what it describes as massive electoral fraud and claims its results should havebeen closer to 70% according to its own survey of the local elections

9 October 2006, violent demonstrations against electoral fraud in local elections 11 October 2006, Vahagn Chakhalyan, now one of the leaders of United Javakhk

Democratic Alliance, is arrested by Armenian authorities and sentenced to two monthsimprisonment for illegal border crossing

2007, demonstrations and violence continue in different parts of Samtskhe-Javakheti againstelection results, denial of language rights, and continued discrimination and exclusion ofArmenian minority

25 November 2007, demonstrations against President Saakashvili in Tbilisi lead him toannounce he would step and hold presidential elections in January

5 January 2008, presidential elections show a sharp decline in Saakashvilis popularity.According to official figures, he received 53.47% of the vote. While many international

26Georgias Armenian and Azeri Minorities, Crisis Group Europe Report N178, 22 November 2006, p. 3.


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observers from the European parliament and Council of Europe proclaimed the electionsfair, others claim the results were falsified to avoid Saakashvili having to proceed to asecond round of voting.

Further opposition rallies in January 2008 attract up to 200,000 demonstrators. 10 January 2008, President Saakashvili cracks down on opponents. The prosecutor general

charges one presidential opponent, billionaire Badri Patarkatsishvili, with conspiracy tooverthrow the government and plotting a terrorist attack. He flees to the UK, receives a two-month jail sentence in absentia on 16 January 2008, and dies suddenly in London on 13February 2008 of a heart attack.

21 May 2008, parliamentary elections are held amidst claims of intimidation andfalsification of results. With a turnout of 55%, the United National Movement of PresidentSaakashvili obtains 59.4% of votes under a proportional system and receives more than two-thirds of parliamentary seats (119 out of 150).

In June 2008, the Georgian Parliament revokes the mandate of 16 opposition parliamentarymembers of parliament: only six members of the Christian Democratic Movement and twofrom the Republican Party decide to hold their seats.

17 July 2008, a blast occurs in Akhalkalaki, in the Samtskhe-Javakheti region, near thehouse of Police Chief Samvel Petrosyan. In response, local police arrest 15 members of alocal Armenian minority political movement, the United Javakhk Democratic Alliance:some reports indicate a number of them were fiercely beaten by police. At 20.00 the sameday, a group made up of police and civilians stormed the house of another Armenianactivist, Gurgen Shirinyan. During this operation, reports indicate Gurgens father wasfiercely beaten. One local policeman, Arthur Berudjanyan, is shot dead.

20 July 2008, another policeman, Armen Gabrielyan, dies. An initial report indicates hecommitted suicide.

21 July 2008, armed and masked Georgian special forces27 enter around 4 am the house ofVahagn Chakhalyan. All family members are initially arrested, though his mother is

released at around 5 am. Vahagn Chakhalyan, his father Ruben and his younger brotherArmen, who is less than 18 at the time, are detained first in Akhaltsikhe, then Tbilisi. Thereare reports suggesting Vahagn, Ruben and Armen were beaten and threatened at the time.

8 August 2008, Georgian ground troops enter Tskhinvali after an extensive artillery barrageThe arrests of the Chakhalyans thus occurred not only during a period of escalating tensions andviolence between Georgian minorities and authorities, but also at about the same time as thegovernment of President Saakashvili was facing widespread domestic unrest and preparing to attackSouth Ossetia in August 2008. In addition to the Chakhalians, Georgian authorities arrested a fewmonths later in January 2009 two other minority Armenians civil activists, Grigol Minasyan andSarkis Hakopjanyan, on charges of espionage for being paid to answer an opinion survey from aBelarusian non-governmental organisation, the Association for Legal Assistance to the Population.Both pleaded guilty rather risk long prison terms.

By 2008-2009, the arrests and other measures by state authorities against Armenian and Azeriactivists such as Vahagn Chakhalyan and members of his family seemed to have helped maintainorder through the creation of an atmosphere of fear and intimation to crush the n ow virtuallydefunct organisation and silence detractors.28

27 The Georgian special police forces are known as spetsnaz.28Georgia: The Javakheti Regions Integration Challenges, Crisis Group Europe Briefing N63, 23 May 2011, p. 4.


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4.2 Questions Surrounding the Accusations against the Chakhalyans

From the beginning the conduct of authorities seemed heavy-handed and suspicious. While theChakhalyans were arrested on 21 July 2008 in what was in effect the middle of the night by specialforces a few days after a bomb explosion and later the death of two policemen, their arrests had in

the end nothing to do with those events: they were initially only charged with illegal possession ofweapons and ammunition which many believe were planted there by special forces themselves, andthe latter charges were also unconnected to the events of July 2008.

Much later, in circumstances raising serious doubts as to the motivations and fairness of the trials,more serious charges of participation in riots, organising group action disturbing public order;resisting authorities and hooliganism were added for events in 2005 and 2006 something whichhad occurred between two and three years earlier.

Vahagn, Ruben and Armen Chakhalyan were initially only charged under Article 236(1) of theCriminal Code of Georgia (acquisition and possession of firearms and ammunition), for which the

maximum sentence could be one year in jail when they first appeared in court on 6 November 2008.The trial was postponed, and eventually when they appeared again on 3 December 2008 they wereto discover to everyones great surprise a series of new criminal charges linked to protestswhich had occurred in 2005 and 2006, carrying with much more serious penalties that could becumulated rather than served concurrently, raising suspicions once again

Thus were added charges against Vahagn Chakhalyan under Article 226 (organising group actiondisrupting public order or active participation therein) and Article 239(2)(b) (hooliganismcommitted against a government representative or a person preventing hooliganism)29 of theGeorgian Criminal Code. Specifically, the latter charges (and terms of imprisonment) relating topublic demonstrations he was involved with in 2005 and 2006:

Violence against pubic officials on 12 April 2005 (2 years of imprisonment); Violence and insults on 11 March 2006 in Akhalkalaki while involved in a public

demonstration (1 year imprisonment); Organising actions of a group against the opening of a military policy office in Akhalkalaki

on 13 and 14 June 2006 (2 years in prison for each day for a total of 4 years); Organising a demonstration protesting electoral frauds in local election on 9 October 2006

(2 years); 1 year of prison for the initial cause of his arrest, possession of a firearm and ammunition

claimed to have been found during his arrest in 2008, for a total of 10 years.

To put it bluntly, grave doubts have been raised about the legitimacy of all of the accusationsagainst the Chakhalyans. In the case of the weapons charges,30 it has been noted by outsidecommentators that these were found by a member of the special forces, very conveniently, whilethe Chakhalyans were not present in the room. Remarkably, almost the same thing happened justthe previous year in 2007 in a case of a police officer fairly obviously planting a weapon andgrenades in the residence of an opposition member.31

29 Hooliganism is defined in Article 239 of the Criminal Code of Georgiaas the action which grossly violates publicorder or demonstrates open contempt toward the public, committed under violence or threat of violence.30 Special forces assert they found a Makarov pistol under the pillow of Armen, and grenades under the bed of Ruben.31 Joni Jikia is considered by the Fdration internationale des Ligues des Droits de l Homme to be a political prisoner.

He is a member of the opposition Conservative Party and was elected to the Zugdidi municipal assembly. On 2 October2007, he was detained by police officers who brought him to his apartment and found very quickly narcot ics, a pistoland grenades. He is in jail on the basis of these chargesand circumstances uncannily similar to what occurred to the


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Subsequent requests by the accused and their lawyers for outside expertise to determine theprovenance of the pistol or grenades were denied, both at trial and appeal levels. For example,despite the requests Chakhalyans lawyers, no fingerprints were ever collected on these objectsreportedly found under the pillow or bed. Vahagn Chakhalyan also claims that the special forceswere videotaping during this time, but that his request during the trial to have this video presented

as evidence was ignored and never produced.

The evidence produced in relation to the other accusations against the Chakhalyans also raisesimilar doubts as to the good faith and motives of the authorities involved: evidence as to the role ofVahagn Chakhalyan with hundreds of other individuals in 2005 or 2006 was contradictory and atbest inconclusive, and even the government official who Chakhlyan was found guilty of hittingactually testified he did not see or know who it was who might have been responsible. Indeed, someof the evidence seemed to show quite the opposite: that Vahagn Chakhalyan attempted during thedemonstrations to calm down the crowds and ensure matters did not get out of hand or that propertywas damaged.

Whatever may or may not have happened, Vahagn, Ruben and Armen Chakhalyan on 7 April 2009are finally found guilty of a number of offences, and in the case of Vahagn sentenced to 10 years in

jail; Ruben was convicted of two charges, organising a riot directed against public order and theillegal purchase and possession of firearms, while Armen was found guilty of the illegal purchaseand possession of firearms. His father and younger brother receive fines equivalent to about $3,000and $1,200 US respectively.

Nor did their ordeals end there or were limited to what occurred during their trial:

12 February 2009, the Georgian Minister of Justice refuses the request to allow a Frenchlawyer, Patrick Arapian, from participating in the defence of the Chakhalyans

16 April 2009, Vahagn Chakhalyan is reportedly badly beaten by prison officers in TbilisiPrison No. 8, two days after a demonstration in his defence in front of the Embassy ofGeorgia in Paris.

24 June 2009, an amendment to Article 78(5) Criminal Procedure Code of Georgia isapproved and comes into effect: foreign lawyers are no longer allowed to defend Georgiancitizens in Georgia

17 July 2009, the request before a magistrate against the decision of the Minister of Justiceto refuse the appointment of a foreign lawyer is rejected on the basis of the legislativeamendment adopted the previous week

27 July 2009, first hearing of the Court of Appeals of Georgia on violations of the rights ofthe Chakhalyans during the trial

18 September 2009, second hearing of the Court of Appeals 23 October 2009, third hearing of the Court of Appeals 30 October 2009, final conclusions of the Court of Appeals 5 July 2010, the Court of Cassation rejects the final appeals of the Chakhalyans August 2010, Application lodged to the European Court of Human Rights 6 October 2011, Vahagn Chakhalyan begins a hunger strike over inhumane and degrading

conditions of his detention (not allowed to see his wife or child like other prisoners; notallowed books or water in his room, etc.)

11 October 2011, Vahagn Chakhalyan ends hunger strike at the request of Bishop VazgenMirzakhanyan, leader of the Armenian Eparchy in Georgia

Chakhalyans just one year later. SeeAfter the rose, the thorns: political prisoners in postrevolutionary Georgia,Fdration internationale des Ligues des Droits de lHomme, Report n 527, August 2009.


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Armenian minority.33 Be that as it may, the prosecution of criminal charges against them since2008 has been frequently questioned and criticised by European and international human rightsorganisations as not respecting many of the minimum guarantees under the right to a fair trial,including the right to examine witnesses and to defend themselves, to have a lawyer of oneschoice, and the right of interpretation where necessary. What occurred to the Chakhalyans during

their trials and subsequent appeals while they were exhausting Georgian domestic remedies asthey were required to do in order to be able to present their case to the European Court of HumanRightswas nothing short of nightmarish.

4.3.1 Denial of the right to examine witnesses

Few rights are more fundamental than that of an accused to present [and cross-examine]witnesses in his own defense.34

Its impossible to have a fair trial if a person is not allowed to defend himself in court, and

especially if he is not allowed to examine witnesses. In a sense there is no trial at all, since you

cannot contradict the evidence of the prosecution to prove your innocence. This is so basic andlogical that it would in most countries be almost inconceivable that a trial could be held with thiskind of restrictions: and yet that is exactly what happened during the trial of the Chakhalyans.

As a human right, the right to call and cross-examine witnesses is clear: Article 6(3)d of theEuropean Convention for Human Rights provides that an accused has the right to call, examine orhave examined witnesses under the same conditions as witnesses for the prosecution. There areonly a very few allowable exceptions, as when witnesses are children or victims of domesticviolence. The general rule is that as accused persons must be allowed to call and examine anywitness whose testimony they consider relevant, and this goes also for witnesses used by theprosecution.

On a number of occasions during the trial, and again during appeal, the Chakhalyans were notallowed to examine prosecution witnesses in complete disregard of this basic tenet of a right to afair trial. For example, the Chakhalyans lawyer requested on 26 March 2009 an opportunity tocross-examine some of the prosecution witnesses, including the chief of police Samvel Petrosyanand his son Gevorg Petrosyan, in relation to what occurred on 9 October 2006. Later, his lawyerpresented another motion on 4 May 2009 requesting that the court correct court records whichomitted the defence motion for the accused to be allowed to examine witnesses.

The accused again requested, when appealing on 15 July 2009 their convictions, that they beallowed to examine all the witnesses used by the prosecution: this request was rejected by the Courtof Appeals. On 22 July 2009, their lawyer requested an opportunity to see the video of events of 9October 2006, this was dismissed by the appeal court without any reasons. In its final conclusionsof 30 October 2009, the Court of Appeals indicated that as the accused had been able to questionsome witnesses, there was no valid ground ofappeals.

Simply put, only allowing the Chakhalyans to question some of the witnesses is completely

contrary to the requirements of a fair trial, and specifically in Europe to what is demanded under

33 On the conclusion of the existence of political prisoners in Georgia, seeAfter the rose, the thorns: political prisoners

in postrevolutionary Georgia, Fdration internationale des Ligues des Droits de lHomme, Report n 527, August2009, p. 30.34Taylor v. Illinois (US Supreme Court) 484 US 400 (1988) 408.


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Article 6(3) of the European Convention on Human Rights, as the European Court of HumanRights outlined in a relatively recent judgment:

Paragraph 1 of Article 6 taken together with paragraph 3 (art. 6-1, art. 6-3), also requires theContracting States to take positive steps, in particular to enable him to examine or have

examined witnesses against him and to obtain the attendance and examination of witnesseson his behalf under the same conditions as witnesses against him. The latter right not onlyentails equal treatment of the prosecution and the defence in this matter... all the evidencemust in principle be produced in the presence of the accused at a public hearing with a viewto adversarial argument.35

The Chakhalyans were not allowed, despite repeated requests both at the trial and on appeal, tosubmit key prosecution witnesses to an adversarial argument that is a basic requirement of theright to a fair trial.

4.3.2 Denial of the right an accused to defend himself

It is also a basic human right that for someone to be able to defend himself at a trial, fairnessrequires that he be given a chance to deal with expert and other evidence in a way that gives him areasonable chance of responding and dealing with this kind of evidence. This is sometimesconnected to the idea of equality of arms in criminal proceedings.

In a way, it means that everyone must have a reasonable opportunity of presenting his case to thecourt without being at a substantial disadvantage against the prosecution, and to have knowledge ofand being able to comment on all the evidence presented against him. This can for example, meanthat when an expert witness appointed by the defence does not get the same facilities as an expertfor the prosecution, there is a violation of Article 6(1) of the European Convention on Human

Rights.36 This also means that under Article 6(3) the prosecution and police have an obligation todisclose any material in their possession, or to which they could gain access, which may help theaccused prove his innocence or to reduce his sentence.37

The Chakhalyans were not allowed to defend themselves in a way which respected the principle ofequality of arms when they were again refused on a number of occasions to have access to expertand other type of evidence.

A couple of examples are quite striking and to show why the Chakhalyans basically had littlechance to defend themselves in this matter:

Vahagn Chakhalyans request during the trial that the video recordings by the Imeditelevision station which had taped the events near the building of municipality on 9 October2006 be produced was ignored.

Vahagn Chakhalian asserted during the trial that when the special forces searched his houseon 21 July 2008 and reportedly found weapons, the operation was captured on film by aspecial forces cameraman. His request at trial for the video to be produced as evidence wasunanswered.

35Barber, Messegu and Jabardo v. Spain, 6 December 1988, judgment of the European Court of Human Rights,

para. 78.36Bnisch v. Austria, (1985) 13 EHRR 409.37Jespers v. Belgium, European Commission on Human Rights, 27 DR 61.


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The Chakhalyans lawyer presented a motion on appeal requesting again on 22 July 2009 forthe opportunity to look at the one video of events of 9 October 2006 which had beenexamined in court and relied by the prosecution to make its case in order to examine moreclosely what was captured in the video; this was denied by the Court of Appeals on 30October 2009.

The trial court rejected the repeated requests (on 22 November 2008 and again on 3December 2008) from the defendants lawyers to appoint an expert in order to takefingerprints from the weapons allegedly found at the house of the Chakhalyans because,apparently too much time had passed (7 months) and for some mysterious reason neither thepolice nor the prosecution had considered fingerprints were needed. A request forfingerprinting was also denied on appeal.

Numerous requests for an independent outside expert to conduct tests in the presence of theaccuseds lawyers on the pant fibres on the pistols holster in addition to the tests carried outby local police were rejected. The results of the tests carried out by the polices own experts,according to the prosecution, are consistent with the clothing worn by VahagnChakhalyan.38

When someone is not allowed to obtain evidence, or have an expert even fingerprint some of themain evidence used in a trial evidence which quite possibly might have been planted or is notallowed to review evidence which seemed to be initially of little relevance, there have to be seriousdoubts about any semblance of equality of arms where an accused has a reasonable opportunity ofpresenting his case without being at a substantial disadvantage against the prosecution.

4.3.3 The right to interpretation when one does not understand the language of proceedings

Surely, this is a scene worthy of Kafka or Orwell: a man is interrogated for several hours ina language he poorly apprehends; he signs a statement in this language, which purports to be

his; then, he is given an interpreter who translates his statement into a comprehensibletongue in order that the man can understand what it was that he has said.39

There cannot be a fair trial if an accused doesnt understand what is being said: there is no way aperson can defend himself because he doesnt understand the nature of criminal proceedingsdirected against himand how to respond.

Every human rights treaty in every part of the world recognises that this is an important aspect of afair trial, and it is also represented in theEuropean Convention on Human Rights in Article 6(3)(e)which indicates that an accused is entitled to the free assistance of an interpreter if he or she cannotunderstand or speak the language used in court.

The Chakhalyans do not understand or speak Georgian, although Ruben and Armen have somefluency in Russian. As a result, they are under European and international human rights law entitledto interpretation in a language they understand which is free so as they can have a fair trial.

It also appears clear that to have a fair trial, the interpretation provided must be adequate, and that

informal or unprofessional interpretation is not sufficient. The European Court of Human Rightshas had a number of judgments on interpretation in criminal cases and has commented in some of

38 InBnisch v. Austria, (1985) 13 EHRR 409, the European Court of Human Rights found a violation of Article 6

(3)(d) because the expert witness appointed was also the expert who had personally drafted and transmitted two reportsleading to the prosecution.39Vargas v. Brown, 512 F. Supp. 271-72 (D.R.I. 1981).


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them that interpretation has to be practical and effective.40 This means not only that authorities haveto appoint an interpreter but, if they have been notified of a problem with the quality ofinterpretation, they must take steps to control the adequacy of the interpretation provided: in otherwords, bad interpretation is no interpretation, and a violation of the right to a fair trial asrepresented in Article 6(3)(e).

At almost every hearing and step of the trial and appeals, interpretation was poor and in some casesnon-existent as the interpreters provided could not speak Armenian. The Chakhalyans and theirlawyers repeatedly brought to the notice of the trial and appeal judges, as the relevant authorities,the inadequacy of the interpretation provided. None of these were ever directly responded to in allof the criminal proceedings and appeals in Georgia.

The number of incidents, and the frustrations of the accused as well as members of the public whocould understand Armenian, are almost countless:

Only 3 out of 171 pages of documents on the pretrial investigation leading up to the chargesagainst the Chakhalyans were translated into Armenian

When the trial hearing started on 6 November 2008, the accused warned that theinterpretation provided was so bad it was incomprehensible; they requested the interpreterbe dismissed.

Written statements from witnesses who had passed away were never translated intoArmenian for the accused.

On 12 March 2009, the lawyer for the Chakhalyans warned in writing the presiding judgethat the interpretation in Armenian was incomprehensible and incomplete, and requestedthat the records of trial hearings be translated and provided

In a few instances the presiding judge himself acted as an interpreter Time, after time again, the Chakhalyans raised the issue in 2008 and 2009 that the

interpreters provided during court proceedings were simply not competent to translate intoArmenian, which left them not understanding the testimony of witnesses and the nature andcontent of some of the evidence being adduced against them. In some cases it appears thatthe interpreter used during some of the hearing may have been fluent in Russian andGeorgianbut not Armenian.

In one incident on 18 September 2009, a 10 minute presentation by the judge wassummarised in one sentence by the interpreter.

In one incident on 23 September 2009, the lawyer acting for Vahagn Chakhalyan requestedthe court to dismiss the interpreter acting at that hearing since she seemed not to be able tospeak Armenian at all. The court dismissed the motion and reprimanded Mr. Chakhalyan forhindering the hearing.

Poor, incomprehensible and in some cases non-existent translation are all violations of the right to afair trial in the case of Vahagn Chakhalyan, and in some cases his father and brother. One lastexample, this time from an outside observer, this time in the case of hearings at the Court ofAppeals, might highlight the continual interpretation problems and extent of the denial of this basichuman right:

There are two interpreters. The first is supposed to translate from Georgian to Armenian andvice versa; its a new interpreter and his first appearance in a court. He quickly appears to be

as incompetent and catastrophic as the others. He sits behind the accuseds cage. The second

40Kamasinski v. Austria, judgement of the European Court of Human Rights, 19 December 1989.


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translates from Georgian to Russian and vice versa for the father and brother of Chakhalyan.He sits between the two of them.

The rest of the Chakhalyan family are in the courtroom, including his wife and manyfriends, as well as journalists from Armenia During the introductory comments by the

Presiding Judge, the Armenian interpreter shows his limited competence and credibility. Asthe accused and members in the courtroom start protesting, the Presiding Judge launchesinto a vicious and aggressive diatribe, recalling to everyone that the proceedings are beingheld in Georgia, in a Georgian court, and that only the accused and his lawyers are entitledto interpretation.41

In effect, and particularly for Vahagn Chakhalyan, it was impossible for him to participateeffectively in the hearings because of the poor, incomplete or non-existent interpretation. He attimes refused to be involved in the hearings, as there was simply for him no way to defend himselfagainst the prosecution, especially after the multiple requests for better translation continued to berejected.

4.3.4 Right to a legal counsel chosen by the accused

Everyone has the right to choose their own lawyer if they so which, according to Article 6(3)(c) oftheEuropean Convention on Human Rights.

Given the seriousness of the accusations against them, the apparent desire of Georgian authoritiesto make an example of them, and the increasing complexity of the case as new charges were laidagainst them, this is exactly what the Chakhalyans tried to do when a request was made on 14November 2008 to the Georgian Ministry of Justice as required by the Criminal Procedure Codeof Georgia at the timefor permission for Patrick Arapian, a member of Paris Bar Association, to

be involved in the case and defend the applicants. The request was denied without any explanationor reasoning.42

41 Translation of Philippe Kalfayan,Rapport de mission dobservation judiciaire, Affaire Vahagn Chakhalyan, Tbilissi(Gorgie), Conseil de Coordination des Organisations Armniennes de France, 12 November 2009: Les traducteurssont au nombre de deux. Le premier est suppos assurer linterprtariat du gorgien vers larmnien et inversement ;

cest un nouvel interprte et cest sa premire apparition dans le procs. Il se rvle rapidement tout aussi incomptentet catastrophique que les prcdents. Il est assis devant la cage du prvenu. Le second traduit du gorgien vers le russeet inversement pour le compte du pre et du frre Chakhalyan. Il est assis entre ces deux personnes. Dans la salle, setrouvent le reste de la famille Chakhalyan, dont son pouse, de nombreux amis du prvenu, ainsi que des journalistesvenus dArmnieLors des propos liminaires de la Prsidente de la Cour, linterprte armnien montre les limites desa comptence et de sa crdibilit. Devant les protestations du prvenu et de la salle, la Prsidente se lance dans une

diatribe agressive et mprisante contre la salle et rappelle que ce procs se droule en Gorgie, dans une Courgorgienne, et que seul le prvenu et ses avocats peuvent exiger une traduction. 42The Public Defender of Georgia sent in March 2009 a letter to the Minister of Justice stating: We conclude thatthe refusal of the Ministry of Justice to appoint the French advocate as defence counsel for Ruben, Armen and VahagnChakhalyan is groundless. Despite the fact that the Chakhalyans interests are defended by the advocates Voskanyanand Rostiashvili, in defending their interests they had a right to seek assistance from a foreign advocate in view of thefact that the Chakhalyans believe that this is essential in ensuring full defence of their rights and will not protract theproceedings. Had this issue concerned the Georgian advocates, the official in charge of the p roceedings would havebeen obliged to make it possible for the Chakhalyans to defend their rights by all means permitted by law. In this case,the issue of the foreign advocate was within the competence of the Ministry of Justice, and since all the documentssubmitted by Gayaneh Chakhalyan satisfied the requirements of permitting the advocate, there were no factual or legalcircumstances supporting this refusal and the request must have been granted. In conformity with the Regulation of theMinistry of Justice approved by the Order No 541 of the President of Georgia dated 7 November 2008, the Ministry of

Justice is a body in charge of the legal provision of the criminal prosecution and the procedural administration of thepreliminary investigation, as well as the performance of other functions prescribed by law, including permitting defence

by a foreign advocate in a Georgian court. The Chakhalyans precedent testifies to the fact that conferring on the


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Astonishingly a few months later on 24 June 2009, the Criminal Procedure Code was quicklyamended without debate in the national parliament, so as to bar foreign lawyers from defendingGeorgian citizens. This of course led to a 17 July 2009 conclusion by a magistrate rejecting amotion against the decision of the Minister of Justice.

Ordinarily, a person is entitled to hire his own lawyer at their own expense, and the only exceptionto this should be whether the lawyer involved has the necessary qualifications and are suitable. Asthe European Court of Human Rights and European Commission have indicated, restrictions on theright of an accused to a lawyer of his own choosing,43 such as qualifications, conduct, and numberof lawyers is permissible, as long as these are reasonable when considering the prejudice caused tothe defendant and his reasons for choosing such a lawyer.44

None of these possible reasonable restrictions in the refusal to allow Patrick Arapian to act as alawyer for the Chakhalyans are relevant here: the request was simply rejected out of hand withoutany explanations by the Minister of Justice, and the law quickly changed after the Ministers

decision so as to prevent the Chakhalyan from trying to have courts deal with their choice of aforeign lawyer.

5. International Responses and Unease

The Fdration internationale des Droits de lHomme, the Human Rights Information andDocumentation Centre, and the Civil Society Institute] conclude that the procedure against Mr.Chakhalyan was carried out with blatant violations of national, regional and international legalstandards on the right to a fair trial. FIDH, HRIDC and CSI intend to follow closely the appeal trialof Mr. Chakhalyan, and call upon the Georgian authorities to guarantee him a thorough andindependent trial in appeal, in conformity with Georgias obl igations under regional and

international Human Rights law.45

The conduct of judicial and law-enforcement authorities in apparent breach of the basic rights ofVahagn Chakhalyan and his familywas frequently raised or condemned by minority and humanrights NGOs within Georgia,46 though none of these efforts appeared to have any effectdomestically. Even Georgias Ombudsman, Sozar Subari, intervened on a number of occasions,

pointing out for example that the Minister of Justices refusal to accept Mr. Chakhalyans

Ministry of Justice the functions of both defence and prosecution is incompatible, and given the fact that the keyfunction of this body is the criminal prosecution there is a high probability that the right to defence will be violated asexemplified by the Chakhalyans case. In view of the aforementioned and according to Article 21(b) of the Law on theHuman Rights Defender of Georgia, I hereby recommend that in order to restore the violated rights of Armen, Roubenand Vahagn Chakhalyan the French advocate Patrick Arapyan must be allowed to participate in the proceedings.43Ensslin and others v. the Federal Republic of Germany (European Commission on Human Rights) 14 DR 64.44Croissant v. Germany, European Court of Human Rights, 25 September 1992.45Fdration internationale des Droits de lHomme, Press release, 7 May 2009, available athttp://www.fidh.org/IMG//pdf/ge0705a.pdf.46 On Georgian NGOs taking the view that the case of the Chakhalyans involved serious breaches of their human rightsor seemed to be a case of political vendetta against leaders of a minority community, are the Human Rights Information

and Documentation Centre, the Civil Society Institute, Democratic Alliance United Javakhk, etc. See also local mediacomments, in English, at http://www.humanrights.ge/index.php?a=main&pid=7843&lang=eng andhttp://www.georgiatimes.info/en/articles/29019.html .
http://www.fidh.org/IMG/pdf/ge0705a.pdfhttp://www.humanrights.ge/index.php?a=main&pid=7843&lang=enghttp://www.georgiatimes.info/en/articles/29019.htmlhttp://www.georgiatimes.info/en/articles/29019.htmlhttp://www.humanrights.ge/index.php?a=main&pid=7843&lang=enghttp://www.fidh.org/IMG/pdf/ge0705a.pdf


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appointment of French lawyer Patrick Arapian for his trial was a violation of the right to defenceguaranteed by the Constitution: his intervention was to no avail.47

Outside of Georgia, despite the international community being distracted and dismayed by eventsduring and following the Georgian-Russian conflict which erupted in August 2008, the situation did

not go unnoticed. In addition to the Fdration internationale des Droits de lHomme taking theview expressed above that the rights of a fair trial were denied in the Chakhalyan matter, otherEuropean and American reports raised concerns that something may have gone horribly wrong inthe way Georgian authorities behaved.

Though couched in diplomatic language, some international organisations seem to now view thewhole episode as possibly involving a political settling of accounts against the leaders of atroublesome minority, rather than a truly criminal matter. As was pointed out by one Council ofEurope committee, advocating minority rights, as protected by the Framework Convention, mustin no circumstances lead to measures of sanctioning of those involved, and that irrespective of thenature of the accusations and the grounds brought against these persons, the authorities should

ensure that the rights of defendants and/or detained persons are fully respected.48 Along the samelines, the US State Department in its last yearly report in 2011 on the human rights situation inGeorgia (the next report being released in April 2012), has begun to identify the treatment of theChakhalyans as a human rights issue, pointing out the concerns of some NGOs that VahagnChakhalian and his relatives had been targeted for prosecution because of his political activity inthe countrys ethnic Armenian community, mentioning the timing of the arrest (two years after

the alleged incident) and the assertion that there were violations which had occurred during the

trial.49

The Chakhlyans ordeal has not occurred in a vacuum, but may be symptomatic of a weakenedgovernment lashing out through the judiciary and law-enforcement agencies at perceived

threats, be it from other political opponents or the leaders of minority organisations. This can helpexplain what today could be seen as the odd frenzy and even paranoia of some pro-governmentGeorgian media alleging during a special Russian Plan report on Rustavi 2 television that VahagnChakhalyan had been detained and charged with a number of others in 2010 for spying forMoscow, and that Georgian opposition figures who supported Chakhalyan were aiding Russia andthus encouraging minority demands and allegedly fuelling tensions in Javakheti.50 That Chakhalyanwas arrested and charged in 2008 rather than 2010 for matters that had nothing to do withespionage did not seem to matter in the story, but it did show how authorities may seem to connectclaims of minorities with political dissent and disloyalty and repressive measures by somebranches of the state apparatus, as pointed out in a recent International Crisis Report since,[p]rocedural violations during the trial and the fact that he was mainly charged with offences

related to the 2006 rallies, such as organising a riot directed against public order and hooliganism,convinced his supporters that the affair was politically motivated.51

47 See the official Georgian text of his statement of 17 February 2009 atwww.ombudsman.ge/index.php?m=8&newsid=979; an English translation is available athttp://www.yerkir.org/index.php?level_id=226&lang=eng .48 Advisory Committee on the Framework Convention for the Protection of National Minorities, Opinion on Georgia,adopted on 19 March 2009, ACFC/OP/I(2009)001, para. 89, at p. 25.49 United States Department of State, 2010 Country Reports on Human Rights Practices - Georgia, 8 April 2011,available at www.state.gov/j/drl/rls/hrrpt/2010/eur/154425.htm50 International Crisis Group, Georgia: The Javakheti Regions Integration Challenges, Briefing N 63, 23 May 2011, p.

10.51 International Crisis Group, Georgia: The Javakheti Regions Integration Challenges, Briefing N 63, 23 May 2011,p. 4.
http://www.yerkir.org/index.php?level_id=226&lang=enghttp://www.state.gov/j/drl/rls/hrrpt/2010/eur/154425.htmhttp://www.state.gov/j/drl/rls/hrrpt/2010/eur/154425.htmhttp://www.yerkir.org/index.php?level_id=226&lang=eng


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Whatever the motivation, the spectre and sense of irregularities at the trial is now fairlywidespread among international organisations, including in a recent report to the Committee ofMinisters of the Council of Europe instructed to assess Georgias progress in fulfilling itscommitments and obligations as a member of the Council of Europe:

43. Recently, some tension has been reported there after [Vahagn Chakhalyan] of thelocal Armenian community was arrested in 2008 and convicted to a prison term, following atrial which has allegedly been

Mariam Sargsyan_Letter of Motivation

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