CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 octobre 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 } .sE208486F { font-family:Arial; color:#ff0000 } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 11 November 2024   FIRST SECTION Application no. 50416/19 Taleh BAGIROV against Azerbaijan lodged on 11 September 2019 communicated on 25 October 2024 SUBJECT MATTER OF THE CASE The present application concerns alleged unfairness of criminal proceedings against the applicant and his conviction on account of an act which allegedly did not constitute a criminal offence under national law. On 31 July 2017 the applicant was transferred from a pre-trial detention facility to a prison to serve his twenty years’ imprisonment sentence imposed on him in an earlier, unrelated set of proceedings (the criminal proceedings resulting in that sentence are the subject of application no. 47347/18 pending before the Court). In the prison, on the same day, 31 July 2017, the applicant was subjected to an X-ray examination. As a result, two packages containing seven MicroSD cards (a type of removable storage device used to store and transfer digital data) were detected inside the applicant’s abdomen. It appears from the case material that the applicant had swallowed those packages at some time during his transfer from the pre-trial detention facility to the prison. Two expert reports obtained by the authorities stated that the cards were electronic devices used as “elements in mobile telephones, devices to make secret audio and video recordings and other devices, including radio electronic devices”, and that they contained video and audio recordings with no prohibited content (such as, for example, incitement to violence). The applicant was charged with a criminal offence under Article 317-2.1 of the Criminal Code for possession of prohibited items in the prison. On 13 February 2018 the applicant was convicted as charged and sentenced to five months’ imprisonment. That sentence was partially cumulated with the unserved part of the initial sentence, resulting in a final sentence of eighteen years’ imprisonment. By its final decision of 19   February 2019, the Supreme Court upheld the conviction. Relying on Article 6 of the Convention, the applicant complains that the criminal proceedings against him were in breach of a number of fair-trial guarantees, including the right to contest evidence against him. Relying on Article 7 of the Convention, the applicant complains that the domestic law was not foreseeable as to whether the MicroSD cards, for possession of which he was convicted, fell under the category of items prohibited by Article 317-2.1 of the Criminal Code. QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article   6 §   1 of the Convention? In particular: (i) was the applicant’s right to a reasoned decision respected? (ii) were the principles of equality of arms and adversarial proceedings respected? (iii) was the applicant afforded an adequate opportunity to contest the evidence against him, and to adduce evidence in support of his line of defence and to have such evidence assessed by the court? 2.     Did the act of which the applicant was convicted constitute a criminal offence under national law at the time when it was committed, as required by Article   7 of the Convention? The parties are requested to provide documentary evidence in support of their replies and submissions, including copies of transcripts of the court hearings.