The photographers’ lawyers say Article 314 of the legal code is drawn up to allow security services to hide details of cases, and to use secrecy to fabricate convictions.
The four photographers brought the number of Georgians convicted of espionage to almost 50 in the last three years. In almost all cases, the prosecution’s main evidence has been a confession from the defendant, who often agreed to confess to lessen his sentence.
Since all the cases are deemed to be secret, the public has no way of examining them.
“The mark of secret is used normally when there is insufficient evidence. If there was evidence, do you really think they wouldn’t show it? With the help of these spy scandals, the government wants to shift society’s attention away from more important questions,” Ucha Nanuashvili, head of the Human Rights Centre, said.
Giorgi Tugushi, the National Defender, Georgia’s human rights ombudsman, called on parliament on August 1 to change the wording of Article 314, specifically that part which says that in addition to state secrets, it is an offence to collect or transmit “other information to foreign espionage agencies or foreign organisations to the detriment of Georgia”.
The ombudsman said the article did not specify what it meant by passing on “other information” and thus was unacceptably broad in meaning and contradicted the freedoms guaranteed by the constitution.
“’Other information’ are words of such wide meaning, that you could include practically any information under them on any subject, and not just facts but also someone’s opinions and views,” the ombudsman’s statement said.
A group of activists and journalists has appealed to the constitutional court to have the article ruled illegal.
The four photographers were given suspended sentences of between three and four years on charges of spying for Russia, in what has become one of the most controversial spy scandals of recent years.
After a wave of protests from the local media, and increasing attention from international organisations, which did not subside even after the photographers admitted their guilt, the court handed down suspended sentences.
“There was no significant proof of the guilt of my client in this case,” said Nino Andriashvili, lawyer for Zurab Kurtsikidze, photographer from the European Press Photo Agency, EPA. She and her client were obliged, however, to sign confidentiality agreements so she could provide no further details.
She also defended 14 of 24 people who were arrested in the Kintsvisi Monastery on May 26 and accused of plotting a coup, following the police dispersal of a protest against President Mikhail Saakashvili.
She said the negotiations leading up to the guilty pleas were arranged without checking with the defendants’ lawyers, and they were sentenced to three to four years in prison after admitting their guilt.
“There was no proof in the case that would have confirmed their guilt. Some of them had just come to the church, and were arrested by accident,” she said.
“I conducted two other cases on espionage charges. Two men of Armenian ethnicity were detained, and they asked me to represent them. Later, they said that they have been asked not to allow human rights groups to interfere and that in exchange they would get their freedom. I was excluded from the case, and later one of the defendants got in touch with me and said they had been released.”
This, she said, has become a worryingly frequent pattern by which espionage cases develop. In 2009, a member of the opposition Popular Party Malkhaz Gvelukashvili and his friend Lasha Chkhenkeli were arrested.
“I represented Chkhenkeli. The case was clearly fabricated, but then he had to refuse a lawyer from an NGO. After that, on the basis of a confession, he was sentenced to four years,” Andriashvili said.
In November last year, 13 people were arrested – four Russian citizens, and nine Georgians – and charged with ties to the GRU, the Russian military’s espionage wing. The case is secret, like all the others.
Activists say, however, that confessions were gained after police put the defendants under physical and psychological pressure. According to Thomas Hammarberg, human rights commissar for the Council of Europe, some 80 per cent of criminal cases in 2010 ended with a confession, which may explain why less than one per cent – 0.2 per cent by Hammarberg’s account – of cases currently end with an acquittal.
Any defendants in espionage cases tempted not to admit their guilt have the example of Vakhtang Maisaia to consider. Formerly an employee at NATO’s diplomatic mission in Georgia, he was arrested in May 2009. He at first admitted his guilt, then retracted his confession, and was sentenced to 20 years.
Activists say that the authorities use the spy cases to distract public opinion from other events.
“I think the arrest of Vakhtang Maisaia was directly connected to the mutiny in the Mukhrovani military base. With this arrest, the authorities attempted to cover up information on the individuals who were arrested for the Mukhrovani incident on May 5, 2009,” said Irakli Seshiashvili, head of the Law and Freedom non-governmental organisation.
“The Maisaia case was thrown together to attract the public’s attention. The arrested man was a victim of the authorities’ politics.”
Nanuashvili, meanwhile, pointed out a similarity in timing between the arrest of Simon Kiladze, an employee at the state chancellery, in March 2006 and an uprising in a prison.
“The same has happened with the photographers. Their arrest covered up another scandal, which was parliament’s adopting of its law on religious organisations, which was provoking mass protests,” Nanuashvili said.
The authorities deny any such manipulation. Giga Bokeria, secretary of Georgia’s security council, said Russia and Georgia were still in a state of conflict, so it was hardly surprising that Russian spies were operating in the country.
“I want to remind you that Georgia is not the only country where significant Russian resources are being spent to create a network of Russian spies,” he said.
Bokeria also said that cases had to be secret to protect highly sensitive information. “And though I understand the great interest in society, such a process cannot be fully open,” he said.
“For me it is totally inexplicable to hear this talk about how it’s a restriction on freedom, or a campaign against the press, etc. Words should not be thrown around so senselessly, such a theory must have some kind of basis.”
As for accusations that the authorities put pressure on defendants to secure a guilty plea, foreign ministry Spokesman Shota Utiashvili insisted there was no such coercion, saying that defendants signed documents themselves, which showed they have no objections.
The authorities have so far declined to comment on possible changes to the law, although activists say they are optimistic.
“We are currently working hard and have appealed to the constitutional court. Our goal is to initiate an extensive discussion on this question in society, so everyone understood the worsening situation,” said Lasha Tugushi, editor-in-chief of Rezonansi magazine, and one of the initiators of the attempt to have Article 314 ruled unconstitutional.