CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 février 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sA68E35A7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } Published on 4 March 2024   FIRST SECTION Application nos. 12043/19 and 50484/20 Anar MAMMADOV against Azerbaijan lodged on 19 February 2019 and 23 October 2020 respectively communicated on 12 February 2024 SUBJECT MATTER OF THE CASE The applications concern criminal proceedings conducted against the applicant, a journalist and chief editor of the news portal criminal.az, in connection with articles he published about events pertaining to the attempted murder of the mayor of Ganja City in July 2018. Application no. 12043/19 On 7 July 2018 the prosecution authorities initiated criminal proceedings under Article 313 (forgery by an official) of the Criminal Code on the basis that those in charge of criminal.az had deliberately disseminated false information as well as information allegedly containing investigation secrets. The applicant was questioned as witness several times in July 2018. On 9 July 2018 a search was carried out in his flat, allegedly without a search warrant issued by a court or a decision by an investigator. During the search, the authorities seized his two mobile phones, computer and some documents. The applicant lodged a complaint under Article 449 (judicial supervision procedure) of the Code of Criminal Procedure with the courts and sought to have the search and seizure declared unlawful. By a final decision of 27   August 2018, the Baku Court of Appeal rejected his complaint stating that the matter could not be the subject of the judicial supervision procedure. Relying on Articles 8 and 13 of the Convention and Article 1 to the Protocol No. 1 to the Convention, the applicant complains of an unlawful interference by the investigation authorities with his right to respect for his home and correspondence and of the domestic courts’ failure to examine his complaints. Moreover, he alleges that he could not use his property due to its allegedly unlawful seizure by the domestic authorities. Application no. 50484/20 On 6 December 2018, in the framework of the same criminal case, the applicant was charged with the criminal offences under Articles 281 (open calls against the State), 309 (excess of official authority) and 313 (forgery by an official) of the Criminal Code in connection with two articles published on criminal.az. By a judgment of 18 March 2019 of the Baku Court of Serious Crimes, the applicant was convicted on all counts and given a suspended sentence of five years and six months’ imprisonment, conditional on two years’ probation, and a two years’ ban on holding public office. In his submissions to the domestic courts, the applicant noted, among other things, that in his publications he had referred to other mass media sources which had first published the information contained in his publications, and that those other mass media sources had not retracted that information. Moreover, he submitted that there were no open calls against the State in his articles and that he had not exceeded his authority in any way. The articles were analytical writings which stressed the seriousness of the incident in Ganja and sought to show the reasons behind it. By a final decision of 25 February 2020, the Supreme Court partially upheld the lower courts’ judgments convicting the applicant and reduced his conditional sentence to five years and three months’ imprisonment subject to two years’ probation, together with the same additional sanction of the two years’ ban on holding public office. Relying on Articles 10 and 18 of the Convention, the applicant complains that the domestic courts’ judgments violated his freedom of expression as a journalist, and that the criminal proceedings were instituted in order to punish him for his journalistic activity. QUESTIONS TO THE PARTIES In respect of application no. 12043/19   1.     In connection with the search and seizure in the applicant’s flat, has there been an interference with the applicant’s right to respect for home and correspondence within the meaning of Article   8 §   1 of the Convention? If so, was the interference prescribed by law and necessary in terms of Article   8 §   2 in pursuit of a legitimate aim? In particular, was there a warrant issued by a court for the search and seizure in the applicant’s flat in accordance with the domestic law? What was the legal basis for the seizure, given that the applicant had not apparently been formally accused of any criminal offences at the time of the search and seizure?   2.     Has there been an interference with the applicant’s right to peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol   No.   1 to the Convention? If so, was it lawful and proportionate to the aims pursued? How long were the seized items retained by the investigation authorities ( compare Smirnov v. Russia , no. 71362/01, § 58, 7   June 2007)?   3.     Did the applicant have at his disposal an effective domestic remedy for his complaints under Article   8 of the Convention and/or Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention?   In respect of application no. 50484/20   4.     Has there been an interference with the applicant’s freedom of expression, within the meaning of Article   10 §   1 of the Convention? If so, was the interference prescribed by law and necessary in terms of Article   10 §   2 in pursuit of a legitimate aim? Were the sanctions imposed on the applicant proportionate to the aims pursued?   5.     Were the measures imposed by the State in the present case, purportedly permitted under Article 10 of the Convention, applied for a purpose other than those envisaged by those provisions, contrary to Article   18 of the Convention?   The parties are requested to submit copies of all documents relating to the criminal proceedings concerning the search and seizure in the applicant’s flat and translations into English or French of the impugned articles published by the applicant which led to his conviction.