CEDH · CASELAW;COMMUNICATEDCASES;ENG — 3 février 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 3 February 2017   FOURTH SECTION Application no. 43983/12 Lasha KHIMSHIASHVILI against Georgia lodged on 5 July 2012 STATEMENT OF FACTS The applicant, Mr Lasha Khimshiashvili, is a Georgian national who was born in 1991 and is currently residing in Nigazeuli village, Shuakhevi Region. He is represented before the Court by Mr P. Bolkvadze, a lawyer practising in Batumi. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 17 June 2011 the applicant was charged with violating the law prohibiting people under the age of twenty-one from carrying a “cold weapon” (one which is not a firearm). In addition, he had a previous criminal record. At the pre-trial hearing the judge approved the list of evidence, none of which was disputed by the parties, and the applicant pleaded guilty. After unsuccessful negotiations with the prosecutor to reach a plea bargain, the applicant changed his position and pleaded not guilty. The trial judge decided to continue the hearing without examining the evidence, considering that the parties had not disputed it at the pre-trial hearing (see the transcript of the trial, p. 7). The parties presented closing arguments and the applicant was allowed to make a final statement in which he pleaded innocent and disputed some of the factual circumstances. By a judgment of 12 September 2011, Batumi City Court found the applicant guilty and sentenced him to two years and ten months’ imprisonment and a fine of 2,000 Georgia Laris (approximately 800 euros (EUR)). The judgment stated that the court had assessed the evidence and delivered its decision on the basis of that evidence (see the judgment of Batumi City Court, p. 3). The applicant appealed against his conviction, complaining that the court of first instance had deprived him of the possibility to challenge the witnesses against him and give his testimony. The applicant requested that the case be re-examined fully by the appellate court at an oral hearing in his presence so that he could examine the witnesses. A copy of the applicant’s appeal was sent to the prosecutor but he did not submit a response. On 7 November 2011 Kutaisi Court of Appeal, dispensing with an oral hearing under Article 295 § 7 of the Code of Criminal Procedure (“the CCP”), delivered a decision fully upholding the applicant’s conviction of 12   September 2011. In its judgment the appellate court stated that the court of first instance had not examined the evidence at the trial because the parties had agreed on the evidence and had not disputed the facts (see the decision of Kutaisi Court of Appeal, p. 3). The applicant lodged a cassation appeal against the appeal court’s decision, complaining that it had decided to dispense with an oral hearing despite his requests to hold one in his presence. On 9 January 2012 the Supreme Court of Georgia rejected the applicant’s complaint on points of law as inadmissible. B.     Relevant domestic law and practice In accordance with Article 73 § 1 (d) of the CCP, if the parties in a trial reach an agreement on a certain circumstance or fact, the court may accept such evidence without examination. Under Article 220 (c) of the CCP, in preparation for a trial hearing, the pre-trial judge and the parties to a case can approve a list of evidence which has been submitted by them and which is not in dispute. In accordance with Articles 292 and 293 of the CCP, appellate courts are empowered to retry criminal cases, both from the factual and legal points of view. Under Article 295 § 7 of the CCP, an appellate court is entitled to dispense with an oral hearing if the proceedings concern a less serious offence. COMPLAINTS The applicant complains under Article 6 §§ 1 and 3 (c) and (d) of the Convention that the Batumi City Court failed to examine witnesses, hear his testimony and examine other evidence, while the Kutaisi Court of Appeal conducted the appellate proceedings dispensing with an oral hearing and without re-hearing evidence. QUESTIONS TO THE PARTIES 1.     Having regard to the case file, in particular the transcript of the trial hearing, the judgment of Batumi City Court and the decision of Kutaisi Court of Appeal, did Batumi City Court deliver its judgment without a full examination of evidence at an oral hearing? If so:   1.1.     Did that render the trial unfair under Article 6 §§ 1 and 3(c) and (d) of the Convention?   1.2.     On what legal grounds did the court refuse to examine witnesses in the presence of the applicant?   2.     Did the applicant have a fair hearing before Kutaisi Court of Appeal, as required by Article 6 §§ 1 and 3 (c) and (d), considering that that court dispensed with an oral hearing and did not examine the witnesses and evidence in the presence of the applicant and/or his lawyer?