Georgia Debates Suspected Criminals' Rights

The European Court of Human Rights (ECHR) last week upheld a controversial Georgian law that sets a potential behavior trap for the country's legendary mobsters, or thieves-in-law. While many Georgians welcome this as a European stamp of approval for Tbilisi's aggressive crackdown on organized crime, some observers believe that the law nonetheless can encourage a disregard for civil rights.

Balancing the ends and the means of its anti-crime campaign already has proven a delicate task for this small South-Caucasus state, once a regional hub for thieves-in-law. Reforms under ex-President Mikheil Saakashvili (2004-2013) ended the hold on power that the thieves had enjoyed in the early post-Soviet era and reinstalled a sense of order. At the same time, however, they were accompanied by reports of vicious prison abuse and violations of constitutional rights.

In 2007, as part of that clean-up, the petitioner in the ECHR case, Izet Ashlarba, a middle-aged villager from western Georgia, was sentenced to seven years in jail for allegedly being part of "the thieves' underworld," a term defined in Georgian law as "any person who recognizes the special rules of the thieves' underworld and is actively engaged in furtherance of the goals of that underworld."

Ashlarba, who pleaded not guilty, was convicted for three alleged actions Georgian law defines as standard for thieves-in-law: the extra-judicial resolution of a dispute by a thief-in-law; using coercion to extract a payment; and, most notably, a discussion about payments to a criminal group's common treasury, or "obshiak" (taken from the Russian word общак).

Ashlarba's counsel argued to the Strasbourg-based ECHR that Georgian criminal law defines thieves-in-law so generally that he had not known that his behavior and conversation could lead to a conviction. The attorneys invoked the no-punishment-without-law axiom of the European Convention of Human Rights, which states that laws must be clear on "what acts and omission are criminal in nature."

But the Court on July 15 ruled that the law, and public knowledge about the practices of Georgian thieves-in-law, was clear enough.

"[E]ven if Mr Ashlarba had not understood such criminal concepts through common, public knowledge, he could have easily foreseen that his actions could result in his criminal responsibility through the wider legislation in place at that time and, if necessary, with the help of legal advice," the Court found.

Gavin Slade, an assistant professor of criminology at the University of Toronto and author of the book "Reorganizing Crime: Mafia and Anti-Mafia in Post-Soviet Georgia," sees room for controversy in the finding, however.

"The ruling in this case assumes that everyone simply knows what the thieves' world is. This is not good enough for me," Slade said.

"In Canada, for example, it is not enough for the police and public to know who the Hell's Angels are," he continued. The prosecution needs "to have enough evidence in each particular case" against the motorcycle gang, widely viewed as an organized-crime group.

"Such burden of proof on the police and prosecution helps defend civil liberties and the abuse of laws concerning crimes of association," Slade commented.

But in Georgia, the use of thief-in-law jargon - in Ashlarba's case, the recorded discussion about an "obshiak" -- can play into a prosecutor's argument that an individual is "actively engaged" in promoting the goals of an organized-crime group.

While Georgian law on the thieves-in-law generally "dovetails with international practice and jurisprudence," the room left for that possibility marks a deviation, Slate argued.

"Some would argue that people should be able to meet, make a club house, talk in prison slang, tattoo themselves and discuss vorovskoy [Russian adjective for thieves-in-law - ed.] folklore if they so wish," he noted.

Some Georgian critics concur. The law does not distinguish between being part of the criminal world and being a fan of the criminal world's anti-establishment philosophy, argued human-rights lawyer Gela Nikolaishvili in a 2012 interview with the local news agency GHN.

Giorgi Gotsiridze, an attorney with the Georgian Young Lawyers' Association, a rule-of-law watchdog, underlines, however, that dropping a slang word used by thieves-in-law is not enough to put someone behind bars under Georgian law. [Editor's note: The Georgian Young Lawyers' Association receives funding from the Open Society Georgia Foundation, part of the network of Open Society Foundations. EurasiaNet.org is financed under the separate auspices of the Open Society Foundation-New York CIty's Eurasia Project.]

What mainly got Alsharba into trouble, he noted, was, among other activities, his participation in criminal garcheva, the once widespread practice of a criminal authority arbitrating a dispute.

"The law speaks about people who accept the authority of the thieves-in-law and are aware of their goals," said Gotsiridze, who supported the ECHR ruling. "Such views can qualify as part of a crime, but not a crime by itself."

A former ombudsman under President Saakashvili also hailed the ECHR decision. "It is true that the law is a bit strange and is different from other criminal laws," Giorgi Tugushi commented to Ekho Kavkaza. "However, taking into account the circumstances, the Court chose to side with society and displayed a good understanding of this problem."

One of the seven judges at Ashlarba's ECHR hearing has a comparatively solid grasp of the problem. Georgia's ECHR judge, Nona Tsotsoria, served as a deputy general prosecutor from 2004 to 2007, when the Saakashvili government's push against thieves-in-law was at its height and Ashlarba was convicted.

Whether or not Tsotsoria had been involved in the investigation of Ashlarba could not be determined. Under the ECHR's rules, a judge is "obliged" to step down from a case if he or she "previously acted in that case in any capacity."

Ashlarba has three months to appeal the Court's ruling against him. His counsel has not stated if he intends to do so.