FIFTH SECTION

DECISION

Application no. 72006/12 Goga JGHARKAVA against Georgia

The European Court of Human Rights (Fifth Section), sitting on 14 January 2021 as a Committee composed of:

Lətif Hüseynov , President, Lado Chanturia, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 22 October 2012,

Having regard to the decision to give notice to the Georgian Government (“the Government”) of the complaint under Article 6 §§ 1 and 3 (c) concerning the absence of personal attendance at the hearing before the appellate court and to declare inadmissible the remainder of the application,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Goga Jgharkava , is a Georgian national, who was born in 1981 and is detained in Georgia. He was represented before the Court by Mr Avtandil Butskhrikidze , a lawyer practising in Kutaisi.

2 . The Government were represented by their Agent, Mr B. Dzamashvili , of the Ministry of Justice.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 16 April 2011 the applicant was arrested in Georgia and charged with aggravated murder of a hotel owner and the latter ’ s female friend in Turkey and the unlawful carrying of a gun.

5 . Between 10 August and 27 December 2011 the Batumi City Court held several hearings with the applicant ’ s and his lawyer ’ s participation.

6 . On 27 December 2011 the applicant was found guilty as charged (see paragraph 4 above). He was sentenced to twenty-four years ’ imprisonment and, as an additional penalty, a fine of 3,000 Georgian laris (GEL) (approximately 1,200 euros (EUR)). The judgment of conviction was based, among other items of evidence, on the results of an identification parade and the eyewitness statements describing the applicant ’ s earlier disagreement with the hotel owner, his armed arrival at the hotel together with another person, as well as his behaviour before and after the shots were fired in the hotel owner ’ s bedroom.

7 . On 24 January 2012 the applicant lodged an appeal against the trial court ’ s judgment. Disagreeing with the trial court ’ s finding of facts and assessment of evidence, he stated, among other things, that the motive for the crime had not been determined and requested a full retrial. He also noted that the minutes of the trial proceedings had not been sent to him within the required time-limit of three working days. Relying on Article 296 of the Code of Criminal Procedure (see paragraph 11 below), the applicant requested to attend the appellate hearing. The prosecutor did not lodge an appeal against the trial court ’ s judgment.

8 . On 28 February 2012 an appellate hearing was held without the applicant ’ s personal attendance but with the participation of his lawyer. The latter requested under Article 296 of the Code of Criminal Procedure (see paragraph 11 below) that the hearing should only be conducted in the presence of the applicant. The appellate court rejected the lawyer ’ s request, stating that the applicant had already given a statement to the trial court and participated in the examination of the evidence. According to the court, as the parties had not requested the examination of any new evidence, and the applicant ’ s position was presented by a qualified lawyer, the personal attendance of the convicted person at the appellate proceedings had not been necessary.

9 . On the same day the Kutaisi Court of Appeal adopted its judgment upholding the lower court ’ s findings (see paragraph 6 above) in full. Addressing the applicant ’ s objections, the appellate court found that the trial court had correctly assessed all the evidence available in the case file material, proving the charges against the applicant, and that no violation of procedural law had been committed in the course of the criminal proceedings which would render the evidence inadmissible or lead to an acquittal. As regards the motive behind the applicant ’ s actions, the appellate court noted that the witnesses had indicated the existence of a conflict between the applicant and the victim but that in any event, this motive had not been used as an aggravating factor in the applicant ’ s case and had been irrelevant for the determination of the charge against him.

10 . On 7 May 2012 the Supreme Court of Georgia declared the applicant ’ s appeal on points of law, in which he had complained about the lack of a hearing before the appellate court, inadmissible.

11 . According to Article 296 of the new Code of Criminal Procedure (“the CCP”), which entered into force on 1 October 2010, a detained convict could request leave to attend an appellate hearing in person, subject to the appellate court ’ s authorisation.

12 . Under Article 297 of the CCP, appellate proceedings are limited in scope to the appeal as lodged before the appellate court and the respondent ’ s reply. A party lodging an appeal against the trial court ’ s judgment bears the burden of demonstrating that the latter has been adopted in breach of law and/or lacks reasoning. New evidence can be introduced at the appellate stage only if a party convincingly demonstrates the importance of such evidence and the reasons for failing to introduce it at the trial stage. As regards the evidence assessed by the trial court, such assessment is considered to be definitive for the purposes of appellate proceedings, except when a party requests the re ‑ assessment of evidence allegedly examined in a serious breach of law.

13 . Article 298 § 3 of the CCP provided for a prohibition of any change to an appellant ’ s circumstances for the worse in the following terms: “an appellate court may not deliver a judgment of conviction instead of a judgment of acquittal, apply a stricter provision of the Criminal Code, impose a heavier penalty, or adopt any other decision that is more unfavourable to the convicted individual if a review of the case is carried out based on an appeal lodged by [the latter] or his or her lawyer, and no appeal was lodged by the prosecuting party.”

COMPLAINT

14 . The applicant complained that the appellate court ’ s failure to ensure his personal attendance at the appellate hearing in the criminal proceedings against him had amounted to a breach of Article 6 §§ 1 and 3 (c) of the Convention.

THE LAW

15 . Relying on Article 6 §§ 1 and 3 (c) of the Convention the applicant complained that he had been deprived of the right to defend himself in person in the criminal proceedings against him on account of the appellate court ’ s failure to ensure his personal attendance at the appellate hearing. The provision in question, in so far as relevant, provides as follows:

“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing ...”

16 . The Government submitted that the applicant had attended and participated in the adversarial hearing before the trial court. As regards the appellate hearing, the Government noted that no new evidence had been submitted to the court, the proceedings had not concerned the applicant ’ s personality and character, and no question of imposing a stricter penalty had been at stake. Therefore, the appellate court ’ s task was limited, in the Government ’ s submission, to merely reviewing, based on the case file material, the adequacy of the fact-finding carried out as part of the trial proceedings. The Government further emphasised the fact that the applicant had been duly represented before the appellate court by the lawyer of his own choosing who had also been present at the trial stage.

17 . The applicant maintained his complaint, stating that he had challenged all the findings of the trial court, claiming his innocence and stating that the trial court had failed to determine the motive behind the crime imputed to him, and his personal participation in the proceedings had therefore been of particular importance.

18 . The Court has held that the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6 (see Stoichkov v. Bulgaria , no. 9808/02, § 56, 24 March 2005, and Sibgatullin v. Russia , no. 32165/02, § 33, 23 April 2009). However, the personal attendance of the defendant does not necessarily take on the same crucial significance for an appeal hearing as it does for the trial (see Kamasinski v. Austria , 19 December 1989, § 106, Series A no. 168, and Hermi v. Italy [GC], no. 18114/02, § 60, ECHR 2006 ‑ XII).

19 . In appeal proceedings, reviewing the case both on the facts and the law, Article 6 does not always require a right to a public hearing, even less a right to appear in person (see Fejde v. Sweden , 29 October 1991, § 33, Series A no. 212-C, and Hermi , cited above, § 62). In order to decide on this issue, regard must be had, among other considerations, to the specific features of the proceedings in question and to the manner in which the applicant ’ s interests were actually presented and protected before the appeal court, particularly in the light of the nature of the issues to be decided by it and of their importance to the appellant (see Hermi , cited above, § 62; see also Ekbatani v. Sweden , 26 May 1988, § 27, Series A no. 134; Kremzow v. Austria , 21 September 1993, § 59, Series A no. 268-B; and Belziuk v. Poland , 25 March 1998, § 37, Reports of Judgments and Decisions 1998 ‑ II).

20 . Turning to the circumstances of the present case, the Court reiterates that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1. Therefore, it will examine the applicant ’ s complaint under these provisions taken together (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I).

21 . The Court observes that before delivering its judgment the Batumi City Court heard the case by means of public adversarial proceedings, with the applicant ’ s participation (see paragraph 5 above). While the Kutaisi Court of Appeal was empowered to examine the case on the facts and the law, the scope of the proceedings before it was determined by the appeal and the respondent ’ s reply (see paragraph 12 above). In this regard, apart from raising an argument regarding the alleged absence of motive for the crime and disagreeing with the lower court ’ s finding of facts, no new elements were raised in the applicant ’ s appeal (see paragraph 7 above). In such circumstances, as per the procedure regarding appellate proceedings, the facts established based on the evidence assessed and admitted as part of the trial proceedings were to be regarded as having been duly determined, except in cases of a serious violation of laws in the admission of the relevant evidence (see paragraph 12 above). In this context, the appellate court did not need to reassess the evidence available in the case-file but rather consider whether the trial court ’ s assessment and findings had been in compliance with the applicable law and procedure (ibid.). As the applicant ’ s argument concerning the absence of a motive behind the crime imputed to him was duly addressed by the appellate court, it is not apparent that his appeal, merely disagreeing with the lower court ’ s assessment of evidence and the finding of facts, could not be examined on the basis of the existing file (see paragraphs 6 - 7 above; see Kamasinski , cited above, § 107 ).

22 . The Court further takes note of the fact that the Kutaisi Court of Appeal duly reasoned its decision to hold the hearing without the applicant ’ s participation (see paragraph 8 above). It emphasised, among other arguments, that the applicant ’ s interests had been duly represented by the lawyer of his choice (ibid.). The Court takes note of the fact that the same lawyer had also participated in the proceedings at the trial stage ( compare and contrast Belziuk , cited above, § 38). Additionally, no question of an increase in the applicant ’ s sentence had been at issue owing to the fact that only the applicant had lodged an appeal against the trial court ’ s judgment of conviction, disallowing the appellate court to adopt any decision putting the applicant in a less favourable situation than the trial court ’ s conviction (see paragraphs 7 and 13 above; compare and contrast Zahirović v. Croatia , no. 58590/11, § 61, 25 April 2013).

23 . In the light of the foregoing, the Court considers that the Kutaisi Court of Appeal could fairly and properly determine the issues before it without hearing the applicant in person. As the appellate court found no reasonable grounds to overrule the facts as established by the trial court, it upheld the latter ’ s judgment in full. In such circumstances, in the present case, the interests of justice and fairness were met by the applicant ’ s being able to present relevant considerations through making written submissions and being represented by a lawyer of his own choosing (see Dimitrievski v. the former Yugoslav Republic of Macedonia ( dec. ), no. 26602/02, 9 May 2006).

24 . The Court therefore finds that the applicant ’ s complaint under Article 6 §§ 1 and 3 (c) is manifestly ill-founded. The application must therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 February 2021 .

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Martina Keller Lətif Hüseynov Deputy Registrar President