THIRD SECTION

DECISION

Application no . 47974/07 Aslan ABASHIDZE against Georgia

The European Court of Human Rights (Third Section), sitting on 4 September 2012 as a Chamber composed of:

Egbert Myjer , President, Corneliu Bîrsan , Alvina Gyulumyan , Ján Šikuta , Luis López Guerra , Nona Tsotsoria , Kristina Pardalos , judges, and Marialena Tsirli, Deputy Section Registrar ,

Having regard to the above application lodged on 23 July 2007,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Aslan Abashidze, is a Georgian national, who was born in 1938 and currently lives in Moscow, the Russian Federation. He was represented before the Court by Mr Shalva Shavgulidze, a lawyer practising in Georgia.

A. The circumstances of the case

2. On 4 January 2006 the applicant, former Head of the Ajarian Autonomous Republic (see Assanidze v. Georgia [GC], no. 71503/01, §§ 63, 69 and 84, ECHR 2004 ‑ II ), was charged with abuse of power, misappropriation of public funds and a number of other offences committed in public office. The applicant evaded the investigation and trial, but his lawyer, Mr Shavgulidze, ensured his defence in the criminal proceedings.

3. By a judgment of 22 January 2007, the Batumi City Court convicted the fugitive applicant of the above-mentioned offences in absentia , sentencing him to fifteen years in prison and to pay a fine of 98,229,530 Georgian laris (some 48,120,812 euros). The City Court explained in the operative part of its judgment, which was announced to the applicant ’ s lawyer at the end of the hearing on 22 January 2007, that, given the applicant ’ s absence, the judgment was final and immediately enforceable; an appeal lay against it only in the situation envisaged by Article 523 § 4 of the Code of Criminal Procedure (“the CCP”), namely after the applicant ’ s surrender to the law-enforcement authorities.

B. Relevant domestic law

4. Article 523 § 4 of the Code of Criminal Procedure, as it stood at the material time, read as follows:

Article 523

“4. If a conviction was delivered following a trial in absentia , the accused may lodge an appeal [on points of law and findings of fact] within one month after having been arrested or surrendered to the relevant authorities”

COMPLAINTS

5. Relying on Article 6 of the Convention and Article 2 of Protocol No. 7, the applicant complained about the inability to lodge an appeal against his conviction which had been delivered following the trial in absentia .

THE LAW

6. Recalling its case-law on the matter, the Court considers that the procedure under Article 523 § 4 of the CCP, whereby a person who was tried and convicted in absentia may lodge an appeal after having surrendered to custody, which by definition cannot be a voluntary act on the convict ’ s part, is not a remedy to be exhausted for the purposes of Article 35 of the Convention (compare with Krombach v. France , no. 29731/96, §§ 66 and 67, ECHR 2001 ‑ II) . The Court further observes that on 22 January 2007 the trial court duly explained to the applicant ’ s lawyer, who also acts as the representative in the present proceedings, that the conviction was final and immediately enforceable and that the statutory bar under Article 523 § 4 of the CCP prevented his client from lodging an appeal in absentia .

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Egbert Myjer              Deputy Registrar Pre sident